Artificial person https://old.zimlii.org/taxonomy/term/10857/all en Paperhole Investments (Pvt) LTD v Pioneer Hi-breed (Pvt) Ltd & Anor (HH338-20, HC7769/16) [2020] ZWHHC 338 (27 May 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/338 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PAPERHOLE INVESTMENTS (PRIVATE) LIMITED</p> <p>versus</p> <p>PIONEER HI-BRED ZIMBABWE (PRIVATE) LIMITED</p> <p>and</p> <p>DANIEL MYERS</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>ZHOU J</p> <p>HARARE, 6, 7, 8, 9, 22, 23 February 2018 &amp; 26 March 2018, 14 January 2019, 4 &amp; 13 March 2019, &amp; 27 May 2020</p> <p> </p> <p><strong>Civil trial</strong></p> <p> </p> <p><em>G. Nyengedza </em>for the plaintiff</p> <p><em>A. B. C. Chinake </em>for the 1st defendant</p> <p><em>Mrs R. Mabwe </em>for the 2nd defendant</p> <p> </p> <p>            ZHOU J: This a claim by the plaintiff against the defendant for payment of a sum of US$201 335.63 in respect of inputs and funds alleged to have been advanced to the defendant by the plaintiff for the growing of soya beans and maize during the 2012/2013 agricultural season.  The plaintiff also claims interest on the above sum of money at the rate of five percent per month calculated from 5 April 2016 to the date of full and final payment, and costs of suit on the legal practitioner and client scale.  The first defendant contests the claim.</p> <p>            The plaintiff’s claim is founded upon an alleged agreement in terms of which the plaintiff would provide financial assistance to facilitate the out-grower contracts which the first defendant had with individual farmers for the growing of soya beans and maize.  The obligations of the first defendant, as alleged by the plaintiff in its declaration are, <em>inter alia</em>, that the first defendant would pay the agreed sum which had been advanced, cede to the plaintiff its rights under the out-grower contracts and pledge to the plaintiff four hundred tonnes of the maize seed to be harvested in 2013.  The maize seed would be processed and held in warehouses under a Collateral Management Agreement.  The warehouse was under the control of the plaintiff.  Plaintiff alleges that pursuant to the Finance Scheme Agreement it provided funding to the first defendant which the latter has failed to repay.</p> <p>            The first defendant denied the existence of the alleged agreement and averred that the alleged agreement was unauthorized, fraudulent and entered into by certain employees who included Daniel Myers and other senior managers for their personal benefit.  First defendant therefore stated that it was not bound by the agreement.</p> <p>            At the pre-trial conference the second defendant who was not a party to the claim when it was instituted was ordered to be joined by the pre-trial conference judge.  The order for the joinder of the second defendant appears to have been made by the judge <em>mero motu </em>because both the plaintiff and the now first defendant denied having a claim against him at the commencement of the trial.  The order for the joinder of the second defendant directed, among other things, that the summons and declaration be served upon him.  Amended summons and declaration were prepared, filed and served.  In the amended summons the plaintiff claimed payment of the money from either first defendant or second defendant or, in the alternative, against both defendants jointly and severally the one paying the other to be absolved.  The first defendant filed an amended plea in which it persisted with its defence and stated, further, that the contracts on which the plaintiff’s claim was founded were concluded by the second defendant personally and that, therefore, any claim should lie against the second defendant. </p> <p>            The second defendant entered appearance to defend and filed a plea.  His case as set out in the plea was that indeed the agreements were concluded as alleged by the plaintiff and that he represented the first defendant in concluding the said agreements in his capacity as the Managing Director.  He denied that the agreements were entered into by him in his personal capacity.</p> <p>            The matter was referred to trial on the following issues:</p> <ol> <li>Whether the second defendant acted within the course and scope of his employment         by entering into agreements with the plaintiff on behalf of the first defendant and      the consequences thereof.</li> <li>Whether the plaintiff has any cause of action against the second defendant.</li> <li>Whether the second defendant is properly joined and the first defendant can seek relief against him in these proceedings, in view of the fact that the first defendant           has not filed a counterclaim against the second defendant, to which the second   defendant can properly plead to any allegations raised against him by the first             defendant.  The consequences thereof.</li> <li>Whether the second defendant indemnified the first defendant against plaintiff’s claims and to what extent and the consequences thereof.</li> <li>Order as to costs and scale thereof.</li> </ol> <p>            Issues 1, 3 and 4 are clearly misdirected as they are not based on the pleadings.  Issue number 1 gives the impression that the claim is founded upon the vicarious liability of the first defendant based on the conduct of the second defendant.  That principle is one that has relevance to the law of delict.  What ought to be determined is whether the first defendant is bound by the terms of the contracts which the first defendant concluded on its behalf.  In other words the issue is whether the second defendant had the authority, actual ostensible, implied, e.t.c to represent the first defendant in concluding the contract being relied upon.  The first defendant is not seeking any relief against the second defendant in both the original plea and in the amended plea.  First defendant could not seek such relief through a counterclaim as suggested in the issue, because the second defendant is a co-defendant.  The second defendant was joined as a defendant by order granted at the pre-trial conference, which means that only the plaintiff could seek relief against him.  If the first defendant wanted the second defendant to indemnify it the correct procedure would have been to have him joined as a third party in terms of Order 14 of the High Court Rules, 1971.  Issue number 4 is difficult to follow not only because it does not arise from the pleadings but also because it refers to indemnification of the first defendant by the second defendant which cause is not alleged by any of the parties.  Further, the procedure for the first defendant to claim to be indemnified was not activated <em>in casu</em>.  It is important to raise these issues in this judgment in order to draw the attention of legal practitioners to the need to take seriously the pre-trial conference procedure.  The issues that emerge from the pre-trial conference must not only be grounded in the pleadings but must be material to the dispute and assist the court to dispose of the dispute or case between the litigants.  The legal practitioners and litigants are enjoined to apply their minds to the issues to be referred to trial.</p> <p>            Be that as it may, the dispute essentially turns on whether the first defendant is bound by the terms of the agreements concluded in its name and on its behalf by the second defendant.  The first defendant’s case is that the agreements were fraudulent and not authorized by its Board of Directors, hence the liability arising out of them should be on the second defendant.</p> <p>In an unusual turn of events, the plaintiff opened its case by leading evidence from the second defendant.  At that stage the second defendant was still legally represented.  When the court questioned the regularity of such a procedure the plaintiff then took the decision to withdraw its claim against the second defendant.  First defendant, through its counsel, also took the position that it was not seeking any relief against the second defendant.  At that stage the second defendant’s counsel was excused from the proceedings.  The plaintiff proceeded to lead the second defendant as its first witness.  He is a former managing director of the first defendant whose contract was terminated in circumstances that had to do with the transactions which form the subject of this matter.  Having joined the first defendant as a seed inspector in November 1993, the second defendant rose through the ranks to become the managing director, a position he held until he left at the end of May 2015.  His evidence was that around 2007 the majority shareholder of the first defendant, which is an American company, stopped giving any financial support to the first defendant.  He therefore came up with strategies to keep the company operational as a going concern.  He entered into the agreement with the plaintiff from which the claim arises.  He and the Financial Manager, Kanembirira, represented the first defendant in the agreement.  The written agreement dated 22 November 2012 shows that the second defendant, Daniel Myers, signed on behalf of the first defendant with Stanley Kanembirira and Reid Campbell signing as witnesses. During cross-examination it was suggested to him that there was no document authorising him to enter into the contract.  His response was that there was no need for such a document.  When asked about who had directed him to use the means that he used to raise funding for the defendant his response was that there was a directive.  He was not sure who had given the directive hence stated that it would have been from the Vice-President of the Group of companies to which the defendant belongs.  The copy of the directive was not produced.  Also, he stated that he did not remember when the directive was issued. He admitted in cross-examination that the defendant did not grow or sell soya beans; neither did it grow commercial maize but only seed maize.  He admitted that Panaar and not the first defendant benefitted from the inputs relating to soya beans and that the transactions relating to the growing of soya beans did not appear at all in the books of the first defendant.  No payment was ever made to the first defendant in connection with these transactions.  The soya beans grown by the financed growers were delivered to the plaintiff.  He repeatedly stated that the benefit to the first defendant arising out of the soya beans transactions was “intangible”.  The witness confirmed that the commercial maize which was grown by the farmers was delivered to the plaintiff not to the first defendant.  The farmers who received the finance signed acknowledgments of debt in favour of the plaintiff.  He confirmed in cross-examination that Mapiye, Mashonga and Janhi who signed documents on behalf of the first defendant were not employees of the first defendant at the time that they signed the documents.</p> <p>            The second witness to testify for the plaintiff was Andrew Mashonga. He was employed by the first defendant as a seed inspector in 1991.  He ceased to be an employee of the first defendant in 2009.  At that time he had risen to the position of field operating manager.  He was hired to work as a consultant in 2012 in connection with the project in terms of which the plaintiff financed the purchase of inputs for growers contracted by the defendant.  He was not involved in the negotiations leading to the agreement but only saw copies of it.  His involvement was in the coordination of the purchase of inputs and organizing delivery of the inputs to the growers.  The inputs were from different suppliers.  The inputs would help in the production of commercial maize and soya beans.  He was paid a commission based on the sales.  According to this witness the only input which was purchased from the first defendant was seed maize.  Crops Contracting (Pvt) Ltd was his company.  Letters of demand which were written to the growers demanding payment were written on behalf of Crops Contracting and not on behalf of the first defendant.  No letter of demand was written on behalf of the first defendant.  The witness later stated that the demands pertained to the 2013/2014 season.  Directors and employees of Crops Contracting (Pvt) Ltd used the address of the first defendant for their business dealings.  One of the directors of Crops Contracting, Sophia Banga, was the wife of the first witness Daniel Myers.  The witness referred to her as a “dummy director”.  He confirmed that at the time that he was given the consultancy the first defendant had its own agronomists who could have done the work but were not involved in this project.</p> <p>            The plaintiff’s third and last witness was Talent Ndige, an agronomist.  In 2013 he was employed by Crops Contracting (Pvt) Ltd as operations manager.  He was linked to Crops Contracting by Daniel Myers.  He was only paid commission from the sale of the first defendant’s seed.  He too was involved in the project which is the subject of this matter as one of the consultants.</p> <p>            The first defendant led evidence from two witnesses.  These are Kevin Madziwa its current financial controller, and Paul Muchena the Impact head for East, Central and Southern Africa. He covers research for both the first defendant and its sister company, Panaar.  Kevin Madziwa joined the first defendant as an Accounting Assistant in 2006 and rose to the current position.  During 2012-2013 his duties included preparation and management of the payroll, creditors, and monthly reports.  According to him the first defendant had no debts owing to the plaintiff.  He stated that in 2012/2013 there was no basis upon which Andrew Mashonga and Talent Ndige could represent the first defendant in any dealings because they were not its employees.  R. Mapiye and Janhi could also not sign on behalf of the first defendant because they were not its employees.  He disputed the plaintiff’s claim against the first defendant.  The first defendant was only involved in seed maize production and could not therefore be involved in business dealings involving soya beans and commercial maize.  He stated that other than the second defendant the other persons who signed documents on behalf of the first defendant were not its employees or directors.  All the other directors disputed the authenticity of the alleged transactions according to this witness.  The transactions were not reflected in the systems of the first defendant.  All the payments made to the plaintiff did not come from the first defendant.</p> <p>            Paul Muchena, an agronomist who was part of the first defendant’s management team for Zimbabwe denied being involved in the transactions between the plaintiff and the first defendant.  He denied attending any meeting in connection with the agreements relied upon by the plaintiff, thereby contradicting the second defendant’s evidence.</p> <p>            The onus is on the plaintiff to prove the existence of the contract between it and the first defendant on a balance of probabilities, see <em>Zimbabwe Financial Holdings </em>v <em>Mafunga </em>2005 (2) ZLR 289 (S).  The first defendant disputes the signed document which it attributes to a fraudulent scheme on the part of the second defendant.  Significantly, the plaintiff did not call any of its representatives, directors or employees, to testify on the alleged agreement.  Thus the fact that the plaintiff entered into that agreement was not proved because none of the plaintiff’s own representatives testified on it.  The witnesses who testified were not representing the plaintiff in the signing of the agreement.  Daniel Myers signed the written agreement on which the claim is based as Managing Director of the first defendant not as a representative of the plaintiff.  In short, the plaintiff did not lead any evidence that it entered into an agreement with the plaintiff.  The evidence led is from persons who purported to have been representing the first defendant.  There are allegations that the so-called agreement was a fraudulent scheme.  The plaintiff led no evidence as to its understanding of the contract and the terms thereof.  Before the court makes an inquiry into the question whether or not the defendant was bound by the agreement it should be satisfied that the plaintiff entered into the agreement relied upon given that the onus is on the plaintiff. </p> <p>            The manner in which the plaintiff’s evidence was presented supports the allegations of a fraudulent scheme as alleged by the first defendant.  Firstly, the same alleged perpetrator of the fraud testified to prove the existence of the agreement without any evidence from those who were negotiating with him on behalf of the plaintiff.  But there are other features of the evidence tendered on behalf of the plaintiff which support the allegation that this was a scheme by Daniel Myers to personally benefit using the first defendant’s name.  The defendant is a company with a board of directors.  No board resolution was produced to prove that the agreement was authorized by the first defendant’s board.  Indeed, none of the directors was mentioned by Daniel Myers as having been involved in the agreement.  Instead, one Stanley Kanembirira who was said to have been the finance manager was the one who together with Daniel Myers sanctioned the agreement.  Stanley Kanembirira signed the agreement as a witness.  A manager is a mere employee of a company.  The signed agreement does not refer to any board resolution authorizing it.  There is the corrupt involvement of a company called Crops Contracting (Pvt) Ltd in which Daniel Myers’ wife, Sophia Banga, was a director.  Andrew Mashonga who was the plaintiff’s second witness referred to Sophia Banga as a “dummy director” (whatever that means).  Daniel Myers never disclosed the fact of the involvement of his wife’s company in a programme which he says was meant to benefit the first defendant but which, as it turns out, is now meant to cost the defendant the money being claimed in this case.  Documents in terms of which instructions were given to supply inputs to the growers were prepared and signed purportedly on behalf of the first defendant by persons who were neither employees nor directors of the first defendant.  For example, at pages 173, 174, 175, 176, 182, 183, 185, 186,188, 189, 192 and pages 261-326 are documents prepared and signed by one R. Mapiye who misrepresented herself as a representative of the first defendant.  It is common cause from the evidence led that she was not employed by the first defendant.  Andrew Mashonga also signed some documents purporting to represent the first defendant even though he was not an employee of the first defendant.  Some of the documents are signed by one Jani purporting to be a representative of the first defendant even though he was not employed by the company.  Most of these documents are stated as having been “checked by” S. Kanembirira although they do not bear his signature to prove such checking.  Clearly the first defendant’s name was being used to pursue the personal business of Daniel Myers, his wife and the other accomplices whose names appear in the documents referred to above.</p> <p>            The unchallenged evidence of the first defendant’s witness, Kevin Madziwa, was that the transactions relating to the plaintiff did not appear in any of the first defendant’s books.  The alleged part payments attributed to the first defendant never came from the defendant as these were not reflected in any of the books of the first defendant.  Other than Daniel Myers and Stanley Kanembirira who were the beneficiaries of the scheme, the other employees of the first defendant were not involved.  Instead, the workers of Crop Contracting (Private) Limited, a company in which Daniel Myers’ wife was director, were managing the project.  The plaintiff did not produce proof of disbursement of any funds from any of its accounts towards the alleged financing of the disputed scheme.  Either the plaintiff is totally unaware that its name is being used by the second defendant and his colleagues at Crops Contracting (Pvt) Ltd or, if it is aware, it realizes that it has no claim against the first defendant, hence the lack of interest to give any evidence in connection with this case.  The many documents meant to show the plaintiff’s statement of account in respect of the alleged scheme were not testified on and could not be related to by the witnesses who testified for the simple reason that these would have been prepared by the plaintiff’s employees and not by the witnesses.</p> <p>            To the extent that the issue of whether the second defendant was acting in the course and scope of employment with the first defendant when he entered into the disputed agreements with the plaintiff was referred to trial, this court has to deal with it.  For the reasons set out above, the second defendant was on a frolic of his own when he concluded the alleged agreement.  In fact, as noted above, the second respondent was actually committing a fraud using the first defendant’s name.  The plaintiff, by failing to lead evidence from its own representatives, has not proved that its own representatives were innocent.  The transactions never passed through the first defendant’s systems.  The alleged part-payments never came from the first defendant.</p> <p>            The issue of whether the plaintiff has any cause of action against the second defendant falls away because the plaintiff withdrew its claim against the second defendant.  But clearly he is the party that the plaintiff ought to have sued if indeed it had suffered any loss arising out of the alleged transactions.  However, all the evidence suggests that it is probably the second defendant seeking to recover the money and not the plaintiff.  Plaintiff did not lead any evidence of a claim against the first defendant.  Equally, the question of whether the second defendant is properly joined and whether the first defendant can seek relief against him without filing a counterclaim falls away because at the commencement of the proceedings the first defendant advised that it was not seeking any relief against the second defendant.  In any event, as noted above, a defendant cannot counterclaim against another defendant.  The third party procedure in terms of which a defendant could seek to be indemnified by a third party was not invoked <em>in casu</em>. These observations also dispose of issue number 1.4.</p> <p>            The plaintiff through its counsel in the closing submissions placed reliance on the ‘<em>Turquand </em>rule’, which is named after the celebrated case of <em>Royal British Bank </em>v<em> Turquand </em>91856) 6 E &amp; B 327.  This principle is predicated upon the rationale that persons who deal with a company cannot be expected to know of irregularities that may take place in the internal management of the company, <em>Mahony </em>v <em>East Holyford Mining Co Ltd </em>(1875) LR 7 HL 869.  Thus if directors in terms of a company’s articles of association have authority to bind the company, but the articles demand that certain formalities be complied with before the power can be properly exercised, a third party contracting with the directors is not bound to investigate whether such formalities have been complied with.  He is entitled to presume that the formalities have actually been undertaken, see <em>Mahomed </em>v<em> Ravat Bombay House (Pty) Ltd </em>1958 (4) SA 704(T); <em>The Mine Workers’ Union </em>v<em> JJ Prinsloo </em>1948 (3) SA 831(A) at 845; <em>Legg &amp; Co </em>v<em> Premier Tobacco Co </em>1926 AD 132.  The presumption does not absolve the person dealing with a company of the duty to see that the directors concerned <em>prima facie </em>have the power to do an act which they purport to do, see <em>The Mine Workers’ Union </em>v <em>JJ Prinsloo, supra, </em>at 845.  In the instant case no resolution of the board of directors of the first defendant was referred to in the agreement, hence no <em>prima facie </em>evidence of the purported authority existed.  The plaintiff did not lead any evidence from those who represented it in the alleged contract as to the basis, if any, upon which they assumed that the second defendant and a mere manager had the authority to represent the first defendant. More significantly, the authorities state that:</p> <p>             “A person dealing with the company is not, of course, entitled to the benefit of this assumption if   he actually knows that the necessary steps have not been taken.  This would be a fraud on the company.”</p> <p> </p> <p>(Visser <em>et al</em>, <em>Gibson South African Mercantile &amp; Company Law </em>8th ed., p. 296.  The fact that the second defendant was pursuing personal interests is clear from the facts of this matter as outlined above.  Plaintiff did not allege that it was unaware of these facts. </p> <p>            Estoppel, which was raised in the closing submissions by Mr <em>Nyengedza </em>for the plaintiff cannot found a cause of action.  It can only be invoked as a defence.  This position of the law is settled, see <em>Union Government </em>v <em>National Bank of SA Ltd </em>1921 AD 121; <em>Mann </em>v<em> Sydney Hunt Motors (Pty) Ltd </em>1958 (2) SA 102(GW); Van der Merwe <em>et al</em>, <em>Contract General Principles </em>4th ed, p. 29.  The raising of it, more so in the closing submissions, is therefore misplaced.  In any event, even in an appropriate case estoppel must be pleaded and proved, see <em>Insurance Trust and Investments (Pty) Ltd </em>v<em> Mudaliar </em>1943 NPD 45, at p. 57.  In this case not only was estoppel not pleaded but also no evidence of a misrepresentation was led because none of the plaintiff’s representatives testified. </p> <p>            First defendant asked for costs on the attorney-client scale.  This is a punitive order of costs which is justified where there are special reasons.  Such special cases include the vexatiousness of a claim or a claim which amounts to abuse of court process, dishonest conduct or behaviour by a litigant, lack of <em>bona fides </em>or other deplorable conduct, see <em>Apotex Inc </em>v<em> Surgimed (Pvt) Ltd </em>2002 (2) ZLR 612(S); <em>Sibanda v Nyathi &amp; ors </em>2009 (2) ZLR 171(H); <em>NUST </em>v<em> NUST Academic Staff &amp; Ors </em>2006 (1) ZLR 107(H); <em>Fuyana </em>v <em>Moyo &amp; Ors </em>2005 (1) ZLR 302(H).  The claim <em>in casu </em>is founded on fraudulent transactions. It would have been clear to the plaintiff that apart from the second defendant all the other persons involved in the transactions were not employees of the first defendant but of Crops Contracting (Pvt) Ltd, a company in which the second defendant has an interest by reason of the directorship of his wife.  Also, no proof of alleged payments to the plaintiff was shown to have come from the first defendant.  The agreement itself makes no reference to a board resolution authorizing Daniel Myers to enter into the contract on behalf of the first defendant.  When the opportunity was presented to the plaintiff to claim against the second defendant following his joinder by an order of this court, the plaintiff snubbed it by withdrawing a claim for such relief even though its amended declaration had sought it.  Instead, the plaintiff elected to use the second defendant as its leading witness, suggesting collusion between the two.  On account of these factors, the special order of costs is justified.  This court would have readily considered awarding costs against the second defendant as well if such costs had been sought against him because the claim is underpinned by his fraudulent conduct.   </p> <p>            In all the circumstances of this case, the plaintiff has failed to prove its claim against the first defendant.</p> <p>            In the result, IT IS ORDERED THAT:</p> <ol> <li>The plaintiff’s claim be and is hereby dismissed.</li> <li>Plaintiff shall pay the first defendant’s costs on the attorney-client scale.</li> </ol> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>Hogwe Nyengedza</em>, plaintiff’s legal practitioners</p> <p><em>Kantor &amp; Immerman</em>, first defendant’s legal practitioners</p> <p><em>Mapfidza Rutsito Legal Practitioners</em>, second defendant’s legal practitioners </p> <p>         </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/338/2020-zwhhc-338.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=29058">2020-zwhhc-338.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/338/2020-zwhhc-338.pdf" type="application/pdf; length=456258">2020-zwhhc-338.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/company">COMPANY</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/director">Director</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/legal-action-behalf-company">legal action on behalf of company</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/liability-companys-debts">liability for companys debts</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/powers">powers of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/persons">PERSONS</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/artificial-person">Artificial person</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/pre-trial-conference">Pre-trial conference</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/agreement-made-conference">agreement made at conference</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/purpose-pre-trial-conference">purpose of pre-trial conference</a></li></ul></span> Tue, 02 Jun 2020 14:13:06 +0000 Sandra 9625 at https://old.zimlii.org Indigenous Petroleum Association of Zimbabwe v ZERA & 2 Others (HH 340-20, HC 3009/20, HC 2280/20 Ref Case No HC 1895/20) [2020] ZWHHC 340 (27 May 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/340 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p>INDIGENOUS PETROLEUM ASSOCAITON OF ZIMBABWE</p> <p>versus</p> <p>ZIMBABWE ENERGY REGULATORY AUTHORITY</p> <p>and</p> <p>MINISTER OF ENRGY &amp; POWER DEVELOPMENT</p> <p>and</p> <p>ZIMBABWE REVNUE AUTHORITY</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHITAPI J</p> <p>HARARE, 18 May 2020 &amp; 27 May 2020</p> <p> </p> <p><strong>Urgent Application</strong></p> <p> </p> <p><em>I Chagonda, </em>for the applicant HC 3009/20</p> <p><em>F Nyani</em>, for the applicant HC 2280/20</p> <p><em>J R Tsivana</em>, for the 1st respondent</p> <p><em>L T Muradzikea</em>, for the 2nd respondent</p> <p><em>E Mukucha</em>, for the 3rd respondent</p> <p> </p> <p>           </p> <p>            CHITAPI J: INTRODUCTION: The two urgent chamber applications cases HC 3009/20 and HC 2280/20 were by consent of the parties consolidated for purposes of hearing. The consolidation was well advised because albeit the applicants in the two cases being different, the respondents were common and the relief sought materially similar.</p> <p>THE PARTIES</p> <p>            The applicant in case HC 3009/20 is a voluntary association with legal status to sue and be sued. It is constituted as a grouping of indigenous fuel importers within Zimbabwe. The members in terms of the constitution which creates and regulates their operations provides <em>inter alia</em> that a person qualifies for membership of the association if the person is a holder of a fuel importers’ licence issued by the first respondent herein.</p> <p>            The applicant in case No. HC2280/20 is much the same as the applicant in case No. HC 3009/20. It is also a group of indigenous fuel importers constituted in terms of its constitution and is a juristic person with power to sue and be sued. There is no specific requirement in the applicant’s constitution that a member should be licensed by the first respondent first to qualify for membership.</p> <p>            The first respondent is the regulatory authority for the petroleum industry. It is a body corporate created by the Petroleum Act, [<em>Chapter 13:22</em>]. It licences fuel industry players. Section 29 of the said Act, provides that:</p> <p>“29 (1) No person other than a petroleum company licenced under this Part shall procure, sell</p> <p>or produce any petroleum product.</p> <p>(2) Any person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level nine or imprisonment for a period not exceeding five years or to both such fine and such imprisonment.”</p> <p>           </p> <p>            The second respondent is the Minister under whose administration the Petroleum Act is assigned whilst the third respondent is the tax authority that controls the importation of fuel into the country by levying necessary duties and ensuring compliance with laws governing goods importation.</p> <p>            The second and third respondents, especially the second respondent have no direct involvement in the dispute between the applicant and the first respondent.</p> <p>RELIEF SOUGHT</p> <p>            The applicant in case No. HC 3009/20 set out the terms of the provisional order sought as follows:</p> <p>            <strong>“TERMS OF FINAL ORDER SOUGHT</strong></p> <p>            That you show cause why a final order should not be made in the following terms:</p> <ol> <li>The 1st respondent’s Notice headed “Licensing of Petroleum Sector Operations in 2020 date stamped 9 March 2020 be and is hereby declared null and void.</li> <li>The 1st respondent’s board is not properly constituted in accordance with the enabling Act and all its actions be and is hereby declared null and void.</li> <li>1st respondent to pay costs of suit.</li> </ol> <p><strong>            INTERIM RELIEF SOUGHT</strong></p> <p>Pending confirmation or discharge of this Provisional order, the applicant is granted the following interim relief:</p> <ol> <li>The first respondent be and is hereby interdicted from giving effect of the Notice headed “Licencing of Petroleum Sector Operations in 2020” dated stamped 9 March 2020.</li> <li>The applicant’s members be and are hereby allowed to continue operating on their current licences as approved by first respondent.</li> <li>Costs shall be in the cause.</li> </ol> <p><strong>SERVICE OF PROVISIONAL ORDER</strong></p> <p>Applicant’s legal practitioners are hereby authorised to serve the provisional order on the respondent.</p> <p> </p> <p>The applicant in case No. HC 2280/20 set out the terms of the provisional order sought as follows:</p> <p><strong>“TERMS OF FINAL ORDER</strong></p> <p>That the respondent show cause, if any, why a final order should not be made in the following terms:</p> <ol> <li>That the 1st respondent notice to the 3rd respondent dated 5 May 2020 and headed “2020 Licenced Fuel and LPG Importers” be and is hereby declared null and void.</li> <li>That the 1st respondent pays costs of this application on a legal practitioner and client scale.</li> </ol> <p><strong>TERMS OF THE INTERIM RELIEF GRANTED</strong></p> <p>Pending confirmation or discharge of this Provincial Order, the applicant is granted the following interim relief:</p> <ol> <li>The Notice issued by the 1st respondent dated 5 March 2020 and headed “2020 Licenced Fuel and LPG Importers” be and is hereby suspended.</li> <li>The 1st and 3rd respondents be and are hereby interdicted from giving effect to the notice referred to in (1) above.</li> <li>The applicant’s members be and are hereby allowed to continue operating using their 2019 licences.</li> </ol> <p><strong>SERVICE OF THE ORDER</strong></p> <p>The applicant’s legal practitioners be and are hereby authorized to serve this order upon the respondent.”</p> <p> </p> <p>As evident from the terms of the provisional order in both applications, the dispute in issue concerns the licencing of the applicant’s members such licencing being a requirement imposed by s 29 of the Petroleum Act, before any person can deal in fuel in any of the manner set out in subsection 1 of s 29 as quoted hereinbefore.</p> <p>BACKGROUND AND ANALYSIS</p> <p>            In the exercise of its functions as provided for in the Petroleum Act, to licence fuel players, the first respondent on 9 March 2020 issued and published a notice directed at the Petroleum Sector setting out licencing requirement for 2020. The material content of the notice is reproduced hereunder:</p> <p>“ZERA</p> <p>            PETROLEUM SECTOR NOTICE</p> <p>            LICENSING OF PETROLEUM SECTOR OPERATORS IN 2020</p> <p>Petroleum sector operators are advised of the 2020 licensing fees and conditions as follows:</p> <ol> <li><strong>Licence fees:</strong></li> </ol> <ol> <li> </li> </ol> <ol> <li> </li> </ol> <p>  </p> <p> Annual licence fee: procurement licence</p> <p> 2 000.000</p> <p>  </p> <p> Annual licence fee: retailing licence (urban area0</p> <p> 10 000</p> <p>  </p> <p> Annual licence fee: retailing licence (rural area)</p> <p> 4 000</p> <p>  </p> <p> Annual licence fee: wholesale licence</p> <p> 122 400</p> <p>  </p> <p> Annual licence fee: blending licence</p> <p> 76 500</p> <p>  </p> <p> Annual licence fee: production</p> <p> 306 000</p> <p>  </p> <p> Annual licence fee: production licence biodiesel</p> <p> 306 00</p> <p>  </p> <p> Bi-annual licence fee: LPG Retail</p> <p> 1 530</p> <p>  </p> <p> Bi-annual licence fee: LPG Wholesale</p> <p> 30 600</p> <p> </p> <ol> <li><strong>Other conditions</strong></li> </ol> <ol> <li>A procurement licensee shall have a supply contract from a trader at the time of application for a licence;</li> <li>A procurement licensee shall have/own at least 25 sites and should provide evidence of such ownership.</li> <li>A procurement licensee should provide a performance bond with a value of ZWL 30 million before licensing.</li> <li>All retail sites should be branded for identification purposes.</li> <li>A procurement licensee shall have control over its retail sites.</li> </ol> <p>On the requirement for retail sites, the following was agreed:</p> <ol> <li>That out of their company owned retail sites, procurement licensees must only run at most 3 of them directly, the rest should be run as company owned-dealer operated (CODCO).</li> <li>That retail sites should be contract to specific OMCs and branded.</li> <li><strong>Commencement of the licensing process for 2020</strong></li> </ol> <p>Petroleum sector operators are advised to start the process of submitting their applications for licensing for 2020. Other licensing requirements remain the same.</p> <p> </p> <p>The notice set out the fees for various classes of fuel licences as shown on the details in the notice. The applicant’s members in both cases HC 3009/20 and HC 2280/20 are in the business of importing fuel for sale in Zimbabwe. The fees and certain of the conditions imposed proved to be too onerous on the would be licencees and other affected persons. The first respondent by notice issued on 13 March, 2020 amended the notice of 9 March, 2020. The details of the contents of the amendment notice were as follows</p> <p>            “</p> <p>            <strong>ZERA</strong></p> <p>            PETROLEUM SECTOR NOTICE</p> <p>AMENDMENT OF THE PETROLEUM SECTOR NOTICE ISSUED ON MONDAY 9 MARCH 2020</p> <p> </p> <p>Following submissions from stakeholders in the Petroleum Sector, on the notice referred to above,             ZERA hereby makes the following statements:</p> <ul> <li>Section b of the said Notice which refers to procurement licences is hereby withdrawn</li> </ul> <p>to allow ZERA to fully consider the representations made by Petroleum Sector Stakeholders.</p> <ul> <li>Revised procurement licence conditions will be published in due course.</li> <li>Petroleum Sector Stakeholders have further made representations pertaining to certain             provisions contained in S. I 65, Petroleum (Direct Fuel Imports and Marking of Fuel)             Regulations, 2020. These will receive consideration from ZERA with the view to</li> </ul> <p>address those concerns when the regulations take effect.”</p> <p> </p> <p>From the contents of the amendment notice read together with the amended notice, the effect of the amendment was to do away with all the conditions set out in part (b) of the original notice of 9 March, 2020. What therefore remained of the notice was part (a) which set out the category licence fees amounts. Part (c) also remained wherein fuel section operators were advised to start the licencing process for 2020 by submitting their applications. The amendment notice was specific that “other licensing requirements remained the same.” If the licensing requirement in part (b) were removed, then the only requirement remaining was payment of the licence fee as prescribed for the type of licence which an operator intended to operate on.</p> <p>            The amendment notice for its part advised that the withdrawal of condition (b) on the first notice would allow time and opportunity for the first respondent to “fully consider the representation made by Petroleum Sector Stakeholders.” Significantly, the notice advised that “revised procurement licence conditions will be published in due course.” The amendment notices also acknowledged that the Petroleum sector stakeholders had made representations in regard to certain unidentified provisions of S.I 65/2020 being the “Direct Final Imports and Marking of fuel Regulations 2020”. The first respondent advised on the notice that it would consider the representations with a view to addressing concerns raised.</p> <p>            On 13 March, 2020, the applicant in case No. HC 3009/20 filed an urgent application against the first and second respondents herein under case No. HC 1895/20. The application was set down before Musakwa J who disposed it by way of a consent order. The terms of the provisional order issued on 18 March, 2020 were as follows:</p> <p>            “<strong>TERMS OF THE FINAL ORDER SOUGHT</strong></p> <p>            That you show cause why a final order should not be made in the following terms:</p> <ol> <li>That 1st respondent’s Notice headed “Licensing of Petroleum Sector Operators in 2020” date stamped 9 March 2020 be and is hereby declared null and void.</li> <li>That 1st Respondent’s board is not properly constituted in accordance with the enabling Act and all its actions be and are hereby declared null and void.</li> <li>1st Respondent to pay costs of suit</li> </ol> <p><strong>INTERIM RELIEF SOUGHT</strong></p> <p>Pending confirmation or discharge of this Provisional Order, the applicant is granted the following interim relief:</p> <ol> <li>That the following provisions of the 1st respondent’s Notice headed “<em>Licensing of</em> <em>Petroleum Sector Operators in 2020</em>” date stamped 9 March 2020 be and are hereby suspended.</li> </ol> <ol> <li>The requirement of twenty-five (25) branded service stations;</li> <li>The requirement of a performance bond with a value of $30 000 000.00; and</li> <li>The requirement to pay $2 000 000.00 as the fee for a procurement license.”</li> </ol> <p>            <strong>SERVICE OF PROVISIONAL ORDER</strong></p> <p>            Applicant’s legal practitioners are hereby authorized to serve the provisional order on the     respondent.”</p> <p> </p> <p>            The basis of the application HC 1895/20 was to seek the setting aside of the notice issued by the respondent on 9 March, 2020 by declaration of invalidity of the notice. Additionally, the applicant seeks another declaration that first respondent’s board is improperly constituted and its purported existence a nullity. The provisional order revisited the notice of</p> <p>9 March, 2020 and in the interim relief three conditions were suspended by order of court as shown on the order.</p> <p>            It is not clear from the papers as to whether or not the amendment notice of 13 March, 2020 was made part of the application HC 1895/2020. It is not on record in any of the papers filed. It is therefore not clear whether conditions set out in the notice (b) which the first respondent had suspended pending consideration of representations and a republication of new conditions done had been reinstated. I however recognize the terms of the interim relief which were made an order of court by Musakwa J. Notably if the requirement to pay a licencing fee of $2 000 000.00 for a procurement licence was suspended, then it essentially means that given that the fee had not been suspended by the amendment notice of 13 March, the effect of the interim relief was that no licence fee was set for a fuel procurement licence for 2020.</p> <p>            It is important therefore to consider the impact of the interim order granted by Musakwa J. In my understanding, from the filed papers, the suspension of the procurement fee of $2 000 000.00 implied that there remained no licence fee fixed for 2020. The suspension holds until the making of a final order on the return date in case No. HC 1895/20. On the return date, a determination will be made whether or not the notice dated 9 March, 2020 fixing licencing requirements for 2020 should be declared null and void as well as a determination being made on the validity of the constitution of the first respondent’s board.</p> <p>            Although the provisional order in case No. HC 1895/20 was granted on 18 March, 2020 none of the parties has taken further steps to have the matter prosecuted or otherwise disposed of in any other competent manner. Therefore, as far as case NO. HC 1895/20 is concerned, the notice of 9 March, 2020 stands suspended in part to the extent set out in the order. In the current application the applicant averred that the first respondent agreed to engage the applicant and that in the event that there was no agreement reached, the applicant would consent to the first respondent filing its opposing papers out of time.</p> <p>            By letter dated 5 May, 2020 and addressed to the third respondent, the first respondents Chief Executive Officer notified the third respondent that only 14 companies listed on an attachment to the letter should be allowed to import fuel. The letter further noted that any company not listed should not be allowed to clear or import fuel into Zimbabwe. It is this directive which has led to the institution of the current application by the applicant on behalf of its members.</p> <p>THE APPLICANTS CASE</p> <p>            The applicant in case No. HC 3009/20 averred in the founding affidavit that following on the grant of the provisional order in case no. HC 1895/20, there was consensus that there should be consultations made to resolve the impasse concerning licencing conditions. The applicant’s legal practitioners’ consequent on the grant of the provisional order by consent wrote a letter on 18 March, 2020 addressed to the first respondent’s legal practitioners confirming that parties had agreed to attempt an amicable resolution of the matter and that in the event that the process of settlement failed, the applicant would agree to an upliftment of bar. The first respondent in its opposing affidavit did not dispute the applicant’s assertion. It admitted that there were negotiations which took place on 30 March, 2020 at which to quote from the first respondent’s affidavit, “… some of the applicants’ proposals being accepted and others rejected.”</p> <p>            The applicant averred that despite the consultations not having been ended by a communication by the first respondent to that effect, the first respondent proceeded to instruct the third respondent to bar fuel importations by the applicant’s members. The applicants aver that there was no communication made to them prior to the first respondent issuing an instruction to bar fuel imports by other fuel players’ other than companies listed in the letter to the third respondent. The applicant in this regard averred that after the meeting of 30 March, 2020, it was necessary for the applicant to consult its membership in regard to proposed conditions and requirements which the first respondent intended to impose. The first respondent proceeded nonetheless to write the letter to the third respondent without advising the applicants of such decision and in the process took them by surprise.</p> <p>            The applicant averred that the actions of the first respondent having been done unilaterally without notice had the effect that the applicant’s member’s trucks were caught up by the ban whilst in transit. The trucks are parked at the border incurring demurrage costs and other ancillary charges.</p> <p>            It is also the applicant’s contention that the first respondent subsequent to the provisional order of Musakwa J did not set new licensing conditions. Alternatively, the applicant averred that even if it is accepted that new conditions were set, they were not communicated to the applicant and other stakeholders. The applicant submitted that the position in relation to licensing for 2020 was therefore in limbo on account of the extant provisional order by Musakwa J. The applicant in case No. HC 2280/20 argues to the same effect.</p> <p>FIRST RESPONDENT’S DEFENCE</p> <p>            The first respondent raised a point <em>in limine</em> challenging the authority of the deponents to the founding affidavits in both applications HC 2280/20 and HC 3009/20 to represent the applicants respectively. It is not necessary to dwell on this point other than noting that such objection was made. The deponents provided confirmation of their authorities and counsel for first respondent abandoned the objections.</p> <p>            The first respondent averred that the applicant failed to establish a legal basis is for the interdict it seeks. The same argument was raised in relation to case No. HC 2280/20. The first respondent averred that s 36 (1) of the Petroleum Act, [<em>Chapter 13:22</em>] gave power and authority to the 1st respondent to prescribe licence terms and conditions and to determine the same from time to time depending on prevailing circumstances. The first respondent further averred that it is not obliged to consult the applicants or agree with them when setting out the conditions.</p> <p>            I must observe that the issue in this application does not concern the powers of the first respondent as given in the Act. The first respondent in the exercise of its functions has a duty as an administrative authority to act reasonably and not in a dictatorial manner. It seems to me that I have to be restrained in what I say because these are issues which arise for determination on the return date in both cases before me and on the return date in case No. HC 1895/20 wherein Musakwa J issues a provisional order. I must avoid making pronouncement which may compromise the court which will decide on the final relief on the return date.</p> <p>            The first respondent submitted that the applicants did not have a <em>prima facie</em> right to be consulted and that for that reason they did not have a <em>prima facie</em> right to the interdict sought. This argument is inconsistent with what the first respondent stated in its notice of 13 March, 2020. In any event the first respondent engaged the applicant as admitted by it on 30 march, 2020. Further, the court in case No. 1895/20 did issue a provisional order suspending conditions set by the first respondent for licensing fuel players for 2020. It is an elementary principle of the law that administrative conduct can be challenged on review by an affected person. The first respondent’s point on the non-existence of a <em>prima facie</em> case by reason must fail. The first respondent cannot act like a loose cannon which simply imposes its powers on affected persons without accountability. To do so does not accord with accepted norms of administration in a democratic society. Fortunately, the first respondent despite the point it took that it does not have to engage affected parties when setting out conditions for hearing, did the corrected thing in engaging them.</p> <p>            The first respondent submitted that the provisional order in case no. HC 1895/20 did not “compromise the first respondents’ normal function to prescribe licensing conditions it deems necessary but simply to hear out the applicant as we had agreed to do.” The first respondent’s contentions are correct. A court does not superintend the functions of an administrative body. What the court does is to exercise powers of review of the decisions of administrative bodies. The powers of review are provided for in s 26 as read with section 27 of the High Court Act, [<em>Chapter 7:06</em>]. In short if the first respondent conducts itself unreasonably it can expect to have its decisions subjected to review.</p> <p>            The first respondent averred in para 13 of its opposing as follows:</p> <p>            “(13) Ad Para 16-17</p> <p>At no point did we expect to reach an agreement with the applicant but simply to hear their views on the proposed conditions which we did.”</p> <p> </p> <p>The hearing of views before taking a decision is a salutary practice because an informed decision can only be reached if all relevant information is to hand. For example, getting the views of stakeholders assists an administrative authority to determine the impact assessments of its proposed decision before making it.</p> <p>It is clear from the papers in this case that the first respondent did not publish what it called the new conditions set after the meeting of 30 March, 20202. The first respondent did not set out the conditions in the opposing affidavit. I was left in the dark on what the conditions are. The first respondent in the amendment notice published 0n 13 March, 2020 stated that revised procurement licence conditions would be published in due course. The fact that publication had to be by notice as done on 9 and 13 March, 2020 must be a given fact.</p> <p>            When I enquired from the first respondent’s legal practitioner as to whether there had been publication of the new conditions, counsel submitted that there had been such publication. When I enquired further on the nature of the publications, counsel made a startling submission that the first respondent had published the licencing conditions via whatsapp. I was not told anything further nor shown the whatsapp messages or to whom they were directed. Counsel made a bare submission that there had been communication through whatsapp. In this regard, I would suggest that the first respondent surely can do better than using whatsapp as official communication.</p> <p>            There was a half-hearted attempt made by the first respondent to argue that the application was not urgent. Of course it was and remain urgent. Whether or not an application is urgent is a value judgment made by the judge before whom the application concerned is placed for consideration and determination. The fuel industry is a strategic industry for the country to operate. The first respondent regulates a key area in the matrix of the economic wellbeing of the country. It is an open secret that the country has a fuel shortage. The case before me concerns the barring of fuel imports over a licencing dispute. It was alleged by the applicants without denial by the first respondent that trucks laden with fuel were caught up in transit by the first respondent’s directive to the third respondent not to allow fuel imports by applicant’s members save listed company’s given to the third respondent. The matter is urgent also in that the applicants filed the application in case No HC 3009/20 on 8 May, 2020 following the first respondent’s directive to the third respondent made on 5 May, 2020.</p> <p>As regards case No.  HC 2280/20, it was filed on 13 May, 2020. The applicant therein indicated that it only saw the notice to the third respondent on 6 May 2020. It decided to first attempt a dialogue route. In this regard, it wrote to the second respondent to intervene. When this overture failed, the applicant then filed the application. I am persuaded that the application HC 2280/20 is also urgent because the applicant did not sit on its laurels but petitioned the second respondent first before coming to court. Its conduct was understandable and there was no inaction on its part.</p> <p>            The first respondent’s counsel submitted that the applicant in case No. HC 2280/20 was a stranger to it since it never entered into dialogue with it. I do not consider that the fact that there may have been no dialogue between the applicant and the first respondent is fatal to the applicant’s case. This argument would have been otherwise had the position been that the applicant’s members are not players in the fuel sector. The first respondent’s directive affects them too. The applicant in terms of its constitution is a juristic person with power to sue and be sued. The relief sought by the applicant in case No. HC 3009/20 is similar to what is sought in case No. case HC 2280/20.</p> <p>I must, before pronouncing my determination take note of the second respondent’s position in the matter. The position which the Honourable Minister took is commendable. He suggested dialogue between the applicants and the first respondent. He did not see the need for involving courts in what is clearly a fuel industry or sector stake holders dispute with the regulatory authority. These are matters which end up being ego fights and retrogressive to the country’s economy. In postponing the matter for judgment I suggested that parties should continue to dialogue but it seems no agreement was reached. I must also note that the second and third respondents essentially will abide the court’s decision.</p> <p>Disposition:</p> <p>            The dispute in this matter is straightforward. In case No. HC 1895/20 this court granted a provisional order whose contents have been discussed or noted. The provisional order remains extant. It was up to any affected party to anticipate its return date. The provisional order granted suspended procurement fees and some conditions imposed by the first respondent. It was agreed that engagements with the first respondent would be held. In a notice issued on 13 May, 2020, the first respondent published a public statement suspending s (h) of the conditions for licencing for 2020 to allow it to consult. The first respondent undertook to then publish new conditions after consultations. It did not do so. It instead unilaterally directed the third respondent to deny permission to applicants’ members to clear their imported fuel into Zimbabwe on the basis that the applicants’ members are not licenced. The new conditions were not produced to the court and were allegedly published through whatsapp.</p> <p>            The applicants in both cases have established a <em>prima facie</em> case for the relief sought or as may be varied by the judge. The applicants on the papers have established a cause of action on which they would be entitled to judgment in their favour in the absence of a successful rebuttal. The first respondent’s conduct in just directing the third respondent to bar fuel imports by applicants’ members on account of their not being licenced when no licensing conditions relating to them had been published was grossly unreasonable. The balance of convenience favours the granting of an interim interdict to regulate the impasse.</p> <p>            The following provisional order shall issue in both applications HC 3009/20 and 2280/20:  </p> <p>(i)         The letter issued by the 1st respondent (Ref FAD/LN/yg/20/303) dated 5 May, 2020 advising the 3rd respondent not to allow any other fuel importer to import fuel other than the ones listed on the annexure to the letter is hereby suspended.</p> <p>(ii)        The respondents herein are interdicted from giving effect to the letter aforesaid.</p> <p>(iii)       The position on fuel imports which obtained before the issuance of the suspended letter to third respondent shall obtain.</p> <p> </p> <p> </p> <p> </p> <p><em>Atherstone &amp; Cook,</em> applicants’ legal practitioners</p> <p>                                    In case No. HC 3009/20</p> <p><em>Nyangani Law Chambers, </em>applicant’s legal practitioners</p> <p>                                    In case No. HC 2280/20</p> <p><em>Sawyer &amp; Mkushi, </em>1st respondent’s legal practitioners</p> <p><em>Civil Division of Attorney General’s Office, </em>2nd respondent’s legal practitioners</p> <p><em>Zimbabwe Revenue Authority Legal Services, </em>3rd respondent’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/340/2020-zwhhc-340.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=35235">2020-zwhhc-340.docx</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/i">I</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interdict">INTERDICT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/final-interdict">Final interdict</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/p">P</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/persons">PERSONS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/artificial-person">Artificial person</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-application">Urgent Application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/certificate-urgency">certificate of urgency</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/what-constitutes-urgency-urgent-application">what constitutes urgency (Urgent application)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Tue, 02 Jun 2020 13:45:42 +0000 Sandra 9624 at https://old.zimlii.org