Judgment No. HB 42/14

                                                                                                                                                                      Case No. HC 1650/13

                                                                                                                                                       Xref HC 3078/11, HC 9090/11

                                                                                                                                                    Xref HC 1940/12 & HC 3558/12

MINISTER OF HIGHER & TERTIARY EDUCATION

VERSUS

BMA FASTENERS (PRIVATE) LIMITED

AND

CHRISTOPHER MASWI N.O (In his capacity as the

Provisional Judicial manager of BMA FASTENERS (PVT) LTD

AND

MASTER OF THE HIGH COURT OF ZIMBABWE N.O

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 13 FEBRAURY AND 20 FEBRUARY 2014

Mr Dube-Banda for the applicant

Miss S. Sauramba for the 1^st & 2^nd respondents

Chamber Application

MAKONESE J:        This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.  The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against 1^st Respondent, a company under judicial management.  Whilst on the merits the application may have succeeded, the Respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

            The Applicant prays for an order couched in the following terms:-

            “(i)       That Applicant be granted leave to execute against 1^st Respondent’s attached 800

                        harrows.

(ii)        That the Applicant be granted leave to institute legal proceedings against 1^st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii)       That 1^st Respondent and 2^nd Respondent Mr. Christopher Masani pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

            In case number HC 3078/11 the Applicant sued and obtained judgment against BMA

fasteners for US$9350-13.  The judgment was obtained on the 12^th January 2012 and a Writ of

 Execution was issued out of this court on 14^th March 2012.  The Deputy Sheriff subsequently

placed under judicial attachment harrows belonging to BMA Fasteners.  Efforts to execute the

 Writ were fruitless as the Respondents made various applications to stay the sale in execution.

 1^st Respondent has now obtained an order of this court placing it under judicial management.

  Paragraph (c) of the order provides as follows:

            “All actions and applications and executions of all writs, summons and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

            The application before the court is for leave of this court to execute the Writ issued by

this court and to institute further proceedings to recover all due and outstanding levies.  The

Applicant contends that the provisional judicial manager is abusing the due process of the court to  frustrate execution of the writs.

            The Respondents have raised the following points in limine:

The Form of the Application

It is trite law that a Chamber Application must comply with the rules governing Chamber applications.  Chamber Applications are provided for by Order 32, Rule 241.  Rule 241 (2) states that where a Chamber Application is to be served on an interested party it should be in Form No. 29 with appropriate modificiations.  In terms of Rule 232 a Respondent shall be entitled to not less than 10 days to file opposing affidavits.  In urgent matters the court may specify a shorter period than 10 days.

            Mr Dube-Banda for the Applicant contends that the proviso in rule 241(2), that the urgent application, “--- shall be in Form No. 29 with appropriate modifications”, meant that the Applicant could vary the period of 10 days to 5 days.  With respect, there is no order of this court granting leave to the applicants leave to give the Respondents 5 days within which to respond.  Mr Dube-Banda was constrained to accept that once a matter is not treated as an Urgent Chamber Application, then the normal rules regarding time limits given to Respondents ought to have applied.  The Applicant’s attempt to vary the period to 5 days was clearly wrong and fatal to the application.  The provisions of Rule 232 apply in that this matter once it is accepted that this is not an Urgent Chamber Application and a Respondent shall be entitled to not less than 10 days to file opposing affidavits.  The Applicant cannot abridge the time limits within which the Respondent is entitled to file the opposing papers without the leave of the court.

            See the case of Zimbabwe Open University v Mazambwe 2009 (1) ZLR 101.

            The Applicant has not adopted the proper form of the application and consequently the court cannot condone departure from the Rules.  In any event the Applicant has not made an application to depart from the rules.  The application is therefore defective in that regard and is fatally so.

Authority to institute proceedings

            The Founding Affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.  The deponent claims to derive his authority from a letter dated 23 July 2002.  The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.  The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.  The letter is not written by the Minister, who in terms of the Act is authorised to act on behalf of the Ministry.  No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.  There was equally no proof to show that the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.  It seems to me to be quite clear that the Founding Affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.  The maxim, delegatus non potest delegare, would apply to the circumstances of the matter before the court.  In other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

            See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.  

            The Applicant failed to prove that Nyasha Njowa was properly authorised to depose to the Founding Affidavit and for that reason the application cannot survive this second preliminary point.

            The Respondent also raised a third preliminary issue, arguing that the interim relief sought was not competent.  It shall not be necessary for me to consider this issue as the matters raised seek to deal with the merits of the application.

            In the result, I accordingly, uphold the points in limine, and dismiss the application with costs on the ordinary scale.

Messrs Majoko & Majoko, 1^st & 2^nd respondents’ legal practitioners

Messrs Dube-Banda, Nzarayapenga & partners, applicant’s legal practitioners