Zimbabwe Assemblies of God Africa v Officer In Charge N.O. Harare Central Police Station and Commissioner General Police N.O and Marufu Chipondoro and Tinotenda G. Shumba

### Preamble
1
HH 384-21
HC 3711/21
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ZIMBABWE ASSEMBLIES OF GOD AFRICA

versus

OFFICER IN CHARGE N.O. HARARE CENTRAL POLICE STATION

and

COMMISSIONER GENERAL POLICE N.O

and

MARUFU CHIPONDORO

and

TINOTENDA G. SHUMBA

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE, 13 and 23 July 2021

Urgent Chamber Application-Compelling Order

R. Matsikidze, for the applicant

D. Jaricha, for the 1st respondent and second respondents

G. Wagoneka & L. Mundiyeta, for the third respondent

MUSITHU J:

The applicant is a universitas, being a church of Christian denomination. It is established in terms of the laws of Zimbabwe. On 8 July 2021, the applicant filed an urgent chamber application seeking relief primarily against the first and second respondents. The relief sought is set out in the draft provisional order accompanying the application and it reads as follows:

“TERMS OF THE FINAL SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms-

The Applicant be and is hereby allowed to have possession of the motor vehicle Hilux D4D, Registration number AFG3892 until the finalisation of criminal proceedings pending under CRB HREP 6297-9/21.

If the matter is opposed, Respondents so opposing be ordered to pay costs at attorney and client scale.

INTERIM RELIEF GRATED

Pending finalisation of this matter, the Applicant is granted the following relief-

The 1st and 2nd Respondents be abd are hereby ordered and directed to release the motor vehicle, Toyota Hilux D4D, Registration number AFG3982 to the Applicant within 24 hours of this order.

Pending the finalisation of this matter Applicant is ordered not to dispose of the motor vehicle Hilux D4D, Registration number AFG3982 or conduct itself, in relation to the said vehicle, in a manner likely to interfere with the outcome of criminal proceedings pending under CRB HREP 6297-9/21.

Applicant is ordered to avail the said motor vehicle to the 1st Respondent as and when it is required in connection with the said criminal proceedings, provided that Applicant shall be entitled to be given 48 hours’ notice thereto.

SERVICE OF PROVISIONAL ORDER

The Applicant’s legal practitioners of record be and are hereby authorized to serve and enforce this provisions order upon the Respondent”

The first, second and third respondents opposed the application. Counsel for the first and second respondents did not file opposing papers, but chose to make submissions from the bar.

FACTUAL BACKGROUND

The applicant entered into an agreement of sale with the fourth defendant for the purchase of a Toyota Hilux D4D, (the vehicle) on 17 May 2021. The applicant took possession of the vehicle upon payment of the purchase price of US$20 200.00. The fourth respondent had allegedly purchased the vehicle from the third respondent. Attached to the applicant’s founding affidavit is an affidavit confirming the sale. The affidavit was deposed to by the third respondent. In that affidavit dated 14 December 2020, the third respondent confirmed selling a Toyota Hilux D4D twin cab, white in colour to one Evidence Fatah for US$21 500.00, which amount was paid in full. The affidavit does not mention the fourth respondent.

Also attached to the founding affidavit is a copy of the vehicle’s registration book in the name of the third respondent.  Both the registration book and the affidavit by the third respondent were allegedly given to the applicant when it purchased the vehicle from the fourth respondent. The applicant further claims that checks were made with the Police Criminal Investigation Department Vehicle Theft Squad in order to ascertain if the vehicle had any criminal history. The police checks revealed no criminal record.

The vehicle was seized by the police on 30 June 2021, on the basis that it was an exhibit in a criminal complaint of kidnapping and extortion reported by the third respondent. The crimes are the subject of a police investigation under CRB HREP 6297-9/21.

Applicant’s Case

The applicant’s contention is that it is not a party to the criminal investigation which led to the seizure of the vehicle. As such, delays in the completion of that criminal process would cause irreparable harm to the applicant as it would be denied the use of its vehicle. The vehicle would also be exposed to the vagaries of the weather during the time that it would be under the custody of the police. According to the applicant, the vehicle was purchased for use in its ministry work during the period of the covid-19 induced lockdown. The applicant was prepared to avail the vehicle as and when it was required by the police for the ongoing criminal proceedings.

The applicant claimed that it had established a prima facie right to the vehicle as confirmed by the documentary evidence alluded to earlier on. It also claimed that it had possessory rights over the vehicle by having possession of the vehicle registration book. For all intents and purposes, applicant was therefore the owner of the vehicle. The necessary background checks had been done and the registration process was underway. As regards the reasonable apprehension of harm, the applicant contended that there was no guarantee that the criminal proceedings would be completed any sooner as the parties were not in control of the process. In the meantime the vehicle would be exposed to the unfriendly weather conditions and losing its value.

The applicant also contended that the only available remedy was to have the vehicle returned to it. There was no other remedy to compensate it for the loss of use of the vehicle. It could also not recover any loss or damage arising from the exposure of the vehicle to the adverse weather conditions. The applicant also averred that the balance of convenience favoured the release of the vehicle on the terms that it proposed.

As regards the urgency of the matter, the applicant submitted that it sprang into action immediately after the seizure of the vehicle on 30 June 2021. The application was filed on 8 July 2021. A delay of a mere 7 days could not be construed as inordinate given the need to put evidence together and prepare the application.

First and Second Respondents’ Case

As noted already, the first and second respondents did not file opposing papers. Submissions were made from the bar. Mr Jaricha submitted that the applicant’s application was premised on the inconvenience that it was enduring as a result of the seizure of the vehicle by the police. The applicant’s case was not so much about the propriety of the seizure. It was about the prejudice it allegedly continued to experience consequent to that seizure. According to Mr Jaricha, the vehicle was lawfully seized by the police after a criminal complaint was made by the third respondent. The vehicle was central to the police investigations.

Mr Jaricha implored the court not interfere with a process that was lawfully carried out. Granting the relief sought would be tantamount to defeating the course of justice. The criminal allegations made against the accused persons implicated in the kidnapping and extortion cases went to the root of the legality of the disposal of the vehicle to the applicant. For that reason it was only proper that the vehicle be left in the custody of the first and second respondents who represented the interests of the State. Once the vehicle was placed under the lawful custody of the police, it could only be released in terms of the same provisions of the law that permitted its seizure in the first place. The application was therefore meritless.

Third Respondent’s Case

The third respondent raised the following preliminary points in his opposing affidavit: lack of urgency; that a lawful process cannot be interdicted; and incompetency of the relief sought. The preliminary point on lack of urgency was abandoned at the commencement of the oral submissions.

Concerning the merits of the matter, the third respondent denied ever selling the vehicle to the fourth respondent.  He did not even know the fourth respondent. The affidavit of sale attributed to him was not even between him and the fourth respondent. It was between him and one Evidence Fatah. That affidavit was obtained under duress when some serious threats were made to his life. The third respondent narrated the events leading to the deposition of that affidavit as follows. The threats made to his life followed the role played by his wife, Patricia Kudzomba, in some pyramid scheme administered by a company called KWD, where she worked. The company allegedly duped investors of their funds, and its employees were arraigned before the Harare Magistrates Court on allegations of fraud. The third respondent’s wife was amongst the employees charged for the offence.  The employees were acquitted of the charges.

The outcome of the court case irked Evidence Fatah, Allen Dzobo and Lionel Mhlambo who were allegedly duped by the company. The trio approached the third respondent and his wife, posing as officers from the Central Intelligence Organisation. They exerted pressure and made death threats against the third respondent and his wife. They wanted the couple to compensate them for the loss they had suffered as a result of the collapse of the pyramid scheme. On 14 December 2020, the third respondent and his wife were allegedly kidnapped at gunpoint by the trio. They were threatened and later taken to the trio’s legal practitioners, Rusinahama-Rabvukwa Legal Practitioners, where they were made to sign several documents, surrendering their assets to the trio. Amongst the documents they were asked to sign was an affidavit in which the third respondent confirmed selling his vehicle to Evidence Fatah, when in fact no such sale had taken place. It was the conduct of Evidence Fatah, Allen Dzobo and Lionel Mhlambo which prompted the third respondent to make a police report leading to the arrest of the trio.

The third respondent denied that the applicant inherited any rights in the vehicle as it was sold pursuant to an agreement of sale that was void. The purported agreement of sale was the subject of criminal proceedings. The criminal proceedings also related to the manner in which the third respondent lost possession of the motor vehicle to the Evidence Fatah, Allen Dzobo and Lionel Mlambo. The third respondent averred that the applicant had failed to establish a prima facie case as the vehicle remained registered in his name. Possession of a registration book in another person’s name did not found a prima facie case in favour of an applicant. The agreement of sale attached to the founding affidavit was between the applicant and the fourth respondent. No connection was established between the fourth respondent and Evidence Fatah to whom the third respondent is alleged to have sold the vehicle.

The third respondent also denied that there was a reasonable apprehension of harm. The motor vehicle was in the custody of the police and safe. Arrangements could be made for an all-weather cover to protect it from harsh weather conditions. In any case, the reason why the vehicle was seized was to allow the courts to interrogate the manner of its acquisition by Evidence Fatah. That obviously had a domino effect. It also affected anyone claiming possession through a sale. For that reason, the vehicle could not be released until the criminal process was concluded. The third respondent further contended that the applicant had an alternative remedy in the form of a claim for damages against the fourth respondent should it be so minded to bring such a claim. The fourth respondent had sold a vehicle that had been unlawfully acquired. He could not have had better rights in the vehicle than the third respondent.

It was contended that the balance of convenience, favoured the retention of possession of the vehicle by the police. The third respondent argued that he had lost possession of the vehicle through illicit means, and he had received nothing in return. The vehicle would lose value with continuous use. Assuming the criminal court convicted the accused persons, the third respondent would have suffered irreparable harm as the vehicle would have depreciated in value, damaged or stolen. The court was urged to dismiss the application with costs on the legal practitioner and client scale.

Submissions on the Preliminary Points

Whether a lawful process can be interdicted

Ms Wagoneka for the third respondent submitted that the relief sought by the applicant was not premised on the impropriety of the first and second respondent’s conduct. The applicant did not assert that the seizure was unlawful. Counsel further submitted that the seizure was carried out in terms of section 49(1) and (2) of the Criminal Procedure and Evidence Act (the Act). It was therefore lawful.

Despite the fact that the relief sought was primarily against the first and second respondents, Ms Wagoneka submitted that the third respondent had a direct and substantial interest in the object of the seizure hence his opposition. He was divested of possession unlawfully. He lodged a criminal complaint of extortion, and the vehicle was part of the extortion. The vehicle was still registered in his name. If the court was to grant the relief sought, then the first and second respondent would be disabled from performing their lawful duties. In essence, the applicant was asking the court to undermine a statutory mandate. That was plainly wrong. In advancing the argument that a lawful process could not be interdicted, Ms Wagoneka referred to the case of Ecocash Zimbabwe (Private) Limited v Reserve Bank of Zimbabwe.

In response, Mr Matsikidze for the applicant submitted that the objection raised by the third respondent was not a preliminary point. The third respondent was pre-empting the substantive issue before the court. It constituted the major component of the merits of the applicant’s case. He further submitted that the court was being asked to take a piecemeal approach in resolving the dispute, which was improper.

The Analysis

It is common cause that what triggered this urgent chamber application was the seizure of the vehicle by the police on 30 June 2021. Upon seizure of the vehicle, the applicant was issued with an Exhibits Seizure Confirmation Receipt (the Seizure Confirmation Receipt). It was issued in terms of section 49(2) of the Act. The Seizure Confirmation Receipt was attached to the applicant’s founding affidavit. Not a single reference was made to that document in the entire affidavit, yet it was supposed to be the foundation of the applicant’s complaint before the court.

Ms Wagoneka argued that the court could not be asked to interfere with what was essentially a lawful process. The applicant had not challenged the act of seizing the vehicle itself. It meant that the seizure was lawful. She further submitted that even though the merits of the case inevitably required the court to consider the lawfulness of the seizure, the point could still be raised at the outset as it was a point of law. On the other hand, Mr Matsikidze argued that the preliminary objection raised by the third respondent was tied to the merits of the case, and therefore ought not to be argued at this stage. He did not take the argument further.

The issue that arises is whether it was proper for the third respondent’s counsel to raise this type of preliminary objection at this stage of the proceedings. In Muchakata v Netherburn Mine KORSAH JA, explained a point of law as follows:

“Provided it is not one which is required by a definitive law to be specially pleaded, a point of law, which goes to the root of the matter, may be raised at any time, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is directed: Morobane v Bateman 1918 AD 460; Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A) at 23D-G.”

The position of the law therefore is that a point of law can be raised at any stage of the proceedings only on condition that there is no law which requires that it should be specially pleaded and it will not cause undue prejudice to the party against whom it is being raised for the first time. It may occur that a preliminary point is at the heart of the dispute before the court on the merits, and therefore it cannot be raised at the early stage without interrogating evidence and consequently the merits of the case. In my view, where a point of law is inextricably tied to the merits of the matter, but does not require allusion to evidence in order to sustain it, then it can be properly raised as an objection in limine. In the present case, the preliminary objection relates to the seizure of the vehicle by the police. The applicant attached the Seizure Confirmation Receipt to its founding affidavit. The Seizure Confirmation Receipt confirms that the vehicle was seized in terms of a law that empowers the police to act in the manner they did. The law speaks for itself. The applicant did not challenge the law, or the manner in which the police acted. I therefore find that the preliminary point was properly raised at this stage.

The second issue that arises is whether this court can grant relief that effectively upsets a lawful process. In Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority, MALABA DCJ (as he then was) explained the purpose of an interdict as follows:

“An interdict is ordinarily granted to prevent continuing or future conduct which is harmful to a prima facie right, pending final determination of that right by a court of law.  Its object is to avoid a situation in which, by the time the right is finally determined in favour of the applicant, it has been injured to the extent that the harm cannot be repaired by the grant of the right.

It is axiomatic that the interdict is for the protection of an existing right.  There has to be proof of the existence of a prima facie right.  It is also axiomatic that the prima facie right is protected from unlawful conduct which is about to infringe it.  An interdict cannot be granted against past invasions of a right nor can there be an interdict against lawful conduct.  Airfield investments (Pvt) Ltd v Minister of Lands& Ors 2004(1) ZLR 511(S); Stauffer Chemicals v Monsato Company 1988(1) SA 895;  Rudolph & Anor v Commissioner for Inland Revenue & Ors 1994(3) SA 771.”  (Underlining for emphasis).

In the Ecocash Zimbabwe (Private) Limited v Reserve Bank of Zimbabwe judgment, CHINAMORA J weighed in as follows:

“The law is established that an interim interdict will not be granted to a person whose rights in a thing have already been taken by operation of law at the time he or she makes an application for interim relief. In Airfield Investments (Pvt) Ltd v The Minister of Lands, Agriculture and Rural Resettlement & Others 2004 (1) ZLR 511 (S) 518 A-B, MALABA JA (as he then was) stated:

“The appellant was not in a position to show the existence of a prima facie right of ownership in the land … because at the time it applied for interim relief all the rights of ownership it had in the land had been taken by means of an order of acquisition and vested in … [the State] … When the appellant lodged the application for the interim relief before the court a quo the acquisition of the land by the State was a fait accompli, all rights of ownership having been extinguished on its part …”

The law is thus settled that courts cannot interdict a lawful process. Doing so would be undermining the very law in terms of which the process was carried out. The law is presumed to be constitutionally valid, until declared unconstitutional by the courts. The court will only interfere where the process which founds that complaint was not carried out in terms of the very law that permits it. That was not the case herein. It was not alleged that the first and second respondents acted unlawfully.

What raised the applicant’s ire was the perceived inconvenience which it was likely to suffer as a result of the seizure of the vehicle. That vehicle had been acquired for a specific purpose. Its seizure meant that the objectives behind its acquisition had been defeated. Further, the applicant was also concerned about the delays in the conclusion of the criminal proceedings, and the deterioration in the value of the vehicle as a result of its exposure to the unfriendly weather conditions.  Such complaints cannot ground a basis for this court to interfere with what was otherwise a lawful process. The seizure was carried out in terms of section 49 (1) of the Act which reads as follows:

“49 State may seize certain articles

(1) The State may, in accordance this Part, seize any article—

(a) which is concerned in or is on reasonable grounds believed to be concerned in, the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere; or

(b) which it is on reasonable grounds believed may afford evidence of the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere; or

(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.

Section 49(2) requires a police officer who seizes and removes any article in terms of Part VI of the Act to issue a receipt to the owner or person in possession of that article. From a reading of the papers, and the submissions from counsel, the manner in which the first and second respondent acted is unimpeachable. In the Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue     Authority, MALABA DCJ (as he then was) further held that:

The applicant accepted in the founding affidavit that the respondent acted lawfully in enforcing the obligation to pay the tax notwithstanding the noting by it of the appeal to the Fiscal Appeal Court against the correctness of the assessment.  It did not allege any unlawful conduct on the part of the respondent which would justify the granting of an interdict.  It also accepted that at the time the respondent put in place measures to collect the tax, the provisions of ss 36 of the VAT Act and 69(1) of the Income Tax Act were binding on it.  That means that the applicant had no prima facie right in existence at the time not to pay the amount of tax it was liable to pay to the fiscus.

I am persuaded by the submission by Ms Wagoneka that having failed to find fault with the seizure of the vehicle, the applicant does not even have a prima facie right which requires the court to intervene and interfere with a lawful process. Further, I also find that even though the preliminary point raised was inextricably tied to the merits of the case, in the sense that the court would need to interrogate the circumstances of the seizure assuming that its lawfulness was an issue, the mere fact that the seizure of the vehicle was done in terms of the law through the conduct of the police which remains an unchallenged assertion, obviates the need to consider the merits of the application. On the basis of the foregoing and the authorities cited above, this court finds that the application is meritless and it must fall.

COSTS

The general rule is that costs follow the event. Although counsel for the third respondent urged the court to dismiss the application with costs on the attorney and client scale, no further submissions were made to justify the award of costs at that level. It is the court’s view that the applicant did not litigate in bad faith. In the exercise of my discretion I find that an award of costs at the level sought by the third respondent’s counsel is not justifiable in the circumstances.

DISPOSITION

Resultantly it is ordered that:

The application is dismissed.

Applicant shall pay the first, second and third respondents’ costs of suit.

Matsikidze Attorneys At Law, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, 1st & 2nd respondents’ legal practitioners

Antonio and Dzvetero, 3rd respondent’s legal practitioners