1.         HANDIWORK & ASSOCIATED REHABILITATION

INDUSTRIES (PVT) LTD

and

HARARECAR BREAKERS SALES & REPAIRS (PVT) LTD

versus

ZIMBABWE BANKING CORPORATION LIMITED

and

GILL, GODLONTON & GERRANS

and

ASHTEC (PRIVATE) LIMITED

and

ASHMAN (PRIVATE) LIMITED

and

STANBIC BANK OF ZIMBABWE LIMITED

and

THE SHERIFF OF THE HIGH COURT OF ZIMBABWE

and

THE REGISTRAR OF DEEDS

 

2.         HARARARE CAR BREAKERS SALES & REPAIRS (PVT) LTD

and

ASHMAN (PRIVATE) LIMITED

and

THE REGISTRAR OF DEEDS

 

3.         HARARE CAR BREAKERS SALES & REPAIR (PVT) LIMITED

and

HANDIWORK ASSOCIATED REHABILITATION (PVT)  LTD

INDUSTRIES

versus

CHARLES NYATANGA

and

THE REGISTRAR OF DEEDS

 

HIGH COURT OF ZIMBABWE

UCHENA J

HARARE, 4, 5, 9, 10 May and 19 July 2006

 

 

Opposed Application

 

Miss Mabuye, for 1^st& 2^ndapplicants

Mrs J Wood, for 6^threspondent in HC 3168/05

& 1^strespondent in HC 4744/05

Mr Madya, for 1^strespondent in HC 2610

& for 3^rd& 4^threspondent in HC 3168/05

Mr Mutasa, for 1^st& 2^ndrespondent in HC 3168/05

No appearance for 7^threspondent in HC 31268/05

& 2^ndrespondent HC 2610/05

 

            UCHENA J:  The 1^stapplicant in HC 3168/05 and 2^ndapplicant in HC 4744/05 Handiwork Associated Rehabilitation Industries (Pvt) Ltd is a company registered in terms of the laws of Zimbabwe.  The 2^ndapplicant in HC 3168/05 and 1^stapplicant in HC 2610/05 Harare Car Breakers Sales and Repairs (Pvt) Ltd is also a registered company in terms of the laws of Zimbabwe.  The two will be referred to as the 1^stand 2^ndapplicants in this judgment.

            The 1^strespondent in HC 3168/05 is Zimbabwe Banking Corporation Limited a Commercial Bank registered in terms of the laws of Zimbabwe.  It will be referred to as ZIMBANK.  Gill, Godlonton and Gerrans the 2^ndrespondent in HC 3168/05 is a firm of legal practitioners.  It will be referred to as  Gill, Godlonton & Gerrans.

            The 3^rdand 4^threspondents in HC 3168/05 and 1^strespondent in HC 2610/05, Ashtec (Pvt) Ltd and Ashman Private Limited are sister companies registered in terms of the laws of Zimbabwe.  They will be hereinafter referred to as Ashtec (Pvt) Ltd or Ashman (Pvt) Ltd.

            The 5^threspondent in HC 3168/05, Stanbic Bank of Zimbabwe Limited is a commercial bank registered in terms of the laws of Zimbabwe.  It will be referred to as Stanbic.

            The 6^threspondent in HC 3168/05 and the 1^strespondent in HC 4744/05 is the Sheriff of the High Court of Zimbabwe.  The only difference is that in HC 3168/05 he was sued in his official capacity while in HC 4744/05 he was sued in his personal capacity as Charles Nyatanga.  He will hereinafter be referred to as the Sheriff.

            The 7^threspondent in HC 3168/05 and 2^ndrespondent in HC 4744/05 and HC 2610/05 is the Registrar of Deeds.  He will be referred to as the Registrar.

            The facts which gave rise to litigation in the three applications which have been consolidated are as follows.  The 2^ndapplicant owed ZIMBANK $552 028.30 as the principal debtor. The 1^stapplicant was the guarantor.  The 2^ndapplicant failed to satisfy its indebtedness and ZIMBANK obtained judgment against the applicants.  The order was granted by GIBSON J on 14 October 1993.  The 3^rddefendant in that case was Bobby Maparanyanga.  He is the deponent of all the founding affidavits in the three cases before me.  He also appeared on behalf of the applicants until he instructed Miss Mabuye to appear for the applicants.  The 4^thdefendant was Bodern Maparanyanga.  He is not involved in the current proceedings.

            The order granted by GIBSON J in HC 5904/93 as per applicant’s annexure A in HC 3168/05 reads as follows:-

            “IT IS ORDERED that

1. the defendants shall pay the plaintiff the sum of $552 028.30 together with                         interest on that sum at the rate of 44% per annum from 1^stAugust 1993 to date of payment in full compounded monthly on the last day of each month, commencing on the 31^stday of August 1993.  The defendants’ liability shall be joint and several the one paying the others to be absolved.
2. The costs of this action shall be paid by the defendants.  Costs shall include collection commission on monies paid at the rates prescribed for the time being by the Law Society of Zimbabwe.  The defendants’ liability shall be joint and several, the one paying the others to be absolved.”  (emphasis added)

 

The interest rate of 44% plus monthly compound interest and costs must have substantially increased the applicants’ indebtedness.  The debt was not paid resulting in ZIMBANK issuing a writ of execution against 2^ndapplicant’s property Lot 1 of Willowvale, Harare.  ZIMBANK’s legal practitioners Gill, Godlonton & Gerrans instructed the sheriff to sale the property in execution.  The sheriff set the sale in execution for the 16^thDecember 1994.  Towards the date of sale, the applicants in desperation negotiated with ZIMBANK resulting in ZIMBANK agreeing to postpone the sale.  ZIMBANK wrote to its legal practitioners Gill, Godlonton & Gerrans to that effect.  The letter is dated 15 December 1994.  Gill, Godlonton & Gerrans in turn wrote to the sheriff on 16 December 1994 instructing him not to proceed with the sale in execution.

The sheriff did not stop the sale because STANBIC had notified him of its participation in the execution and had filed with him its participating writ.  The sheriff’s sale proceeded.  The applicants’ property was sold to Michael Scot Asher who was the highest bidder.  He offered $750 000.00 which if added to 10% deposit came to $825 000.00.

The sheriff’s distribution plan indicates that the total proceeds of the sale was the sum of $900 000.00.  The affidavits filed in the cases before me indicate that the original price offered was not accepted so Michael Scot Asher increased his offer to $900 000.00.

The sheriff confirmed the sale and transferred the property to Ashman (Pvt) Ltd in accordance with instructions from Michael Scot Asher. Michael Scot Asher who is the managing director of Ashtec (Pvt) Ltd and Ashman (Pvt) Ltd said he was the highest bidder and not Ashtec as alleged by the applicant..  This is confirmed by annexure H to the applicant’s founding affidavit in HC 3168/05.  Michael Scot Asher in his opposing affidavit in HC 3168/05 said he instructed the sheriff to transfer the property to Ashman (Pvt) Ltd.

According to the sheriff’s distribution plan, applicant’s Annexure D, in HC 3168/05 the proceeds were disbursed to:-

“1.  The sheriff,  2.  Advertising   3.  Commissioners fees Deputy Sheriff   4.  Provision for advertising the distribution plan    5.  To Beverley Building Society (1^stand 2^ndBond Holder $808 804-27 and 6.  To Messrs Gill, Godlonton & Gerrans on behalf of the plaintiff the balance in respect of judgment debt of $552 028.30.  Interest thereon $711 722.47 and costs $6 206.14, $1 269 956.91.  Pro-rata share $72 259.59.”

Thus the sum of $900 000.00 was fully disbursed.

At the end of submissions by all parties it became common cause that:-

1. ZIMBANK was entitled to issue a writ of execution as the judgment in HC 5904/93 remained unsatisfied.
2. That ZIMBANK and Gill, Godlonton & Gerrans instructed the sheriff to postpone the sale in execution.
3. That the sale in execution was not stopped because of Stanbic’s participating writ.
4. That there is no challenge to the Sheriff’s distribution plan.  Gill, Godlonton & Gerrans and ZIMBANK agree that money indicated as disbursed to them was indeed disbursed to them.
5. That transfer to Ashman (Pvt) Ltd was as per Mr Michael Scott Asher’s instructions.

The applicants in HC 3168/05 sought the following orders:-

1. That the deed of transfer number 899/95 registered in the name of Ashman (Pvt) Ltd on 17^thday of February 1995 be and is hereby cancelled.
2. That the Deed of transfer number 1082/91 registered in the name of the 2^ndapplicant Harare Car Breakers Sales and Repairs (Private) Limited on the 15^thday of February 1991 be and is hereby reinstated.
3. That the costs of this application inclusive of any costs incurred in giving effect to the cancellation of Deed of Transfer number 899/95 and obtaining of the status quo that is reinstating of Deed of Transfer number 1082/91 passed in favour of the 2^ndapplicant on 15^thday of February 1991 be borne by 2^nd, 4^thand 6^threspondents one paying the other to be absolved, the 1^st, 3^rd, 5^thand 7^threspondents will only pay if they oppose the application.

The applicants based the orders they sought on the following allegations.  They alleged that the sale was proceeded with due to corruption and fraud perpetrated by the sheriff who colluded with Ashtec and Ashman (Pvt) Ltd.  The applicants also alleged that the sheriff’s refusal to stop the sale was irregular.  They questioned how the sheriff got transfer of the property to himself in his personal capacity and thereafter transferred it to Ashman (Pvt) Ltd.  They questioned why the proceeds of the sale were not disbursed to Stanbic if its participation caused the sale in execution to proceed.

The orders sought under HC 2610/05 and H/C 4744/05 are similar to those sought under HC 3168/05 and the reasons are basically the same.

The attack on ZIMBANK and Gill, Godlonton & Gerrans is premised on why they were paid part of the proceeds after they had instructed that the sale be stopped. 

The respondents opposed the applications. They gave detailed accounts of events leading to the transfer of the property to Ashman (Pvt) Ltd.  Their accounts are covered under what I have indicated as the common cause position.

Ashtec (Pvt) Ltd, Ashman (Pvt) Ltd and the sheriff counter applied and sought orders of perpetual silence against the applicants.  Their counter applications are premised on applicants having continuously harassed them through frivolous and vexatious applications which are not persued to finality.  They gave details of such applications.

The applicants opposed the counter applications and claimed they have a constitutional right to continue litigating on the issue until they got their property back.

The respondents in opposing the applicants’ three applications raised points in limine.

1. That the applicant’s claim is now prescribed.
2. That applicants filed the applications without complying with Justice Bhunu’s order in HC 4441/03.
3. That the issue is now res judicata it having been determined by ZIYAMBI J (as she then was) in HC 10851/96 when she dismissed the applicant’s claim based on the same issue and for the same relief.

 

Prescription

            The cause of action on which the applicants base their applications occurred on the 17^thFebruary 1995 when Lot 1 of Willowvale, Harare was transferred to Ashman (Pvt) Ltd.  More than 10 years have since passed.  The respondents say the prescription period is 3 years while the applicants say it is 30 years because the cause of action arose from a debt secured by mortgage bond.

            Section 15 of the Prescription Act [Chapter 8-11] provides as follows:-

            “15.  That the period of prescription of a debt shall be –

1. thirty years, in the case of
   1. a debt secured by mortgage bond
   2. ..................................
2. .......................................
3. ........................................
4. Except where an enactment provides otherwise, three years, in the case of any other debt.”

 

In order to determine whether the debt in issue falls under section 15(a) (i) or section 15(d) the cause of action should be considered.

The applicants’ property was according to the facts to be sold for a debt they owed to ZIMBANK.  There is no dispute on ZIMBANK’s right to execute the judgment it was granted by this court.  The question to be answered is why do applicants’ want the transfer of their property reversed.  The answer is simply because they allege the sale of the property in execution for a judgment debt emanating from their failure to pay their creditor ZIMBANK was proceeded with due to fraud, corruption or irregularity.  The alleged fraud corruption and irregularity was only possible because the property had been placed under a writ of execution because of a debt secured by a mortgage bond.  What the applicants are saying is without the fraud, corruption or irregularity their property would not have been sold and transferred for a debt secured by mortgage bond because the judgment creditor had agreed to postpone the sale.  This means the debt for which the property was to be sold was secured by mortgage bond.  I would therefore agree with Miss Mabuye that the prescription period is 30 years and the debt has not yet been prescribed.

 

Justice Bhunu’s Orders in HC 4441/03

            The 2^ndapplicant and Bobby Maparanyanga who is the managing director of both applicants were sued in HC 4441/03/by Ashman (Pvt) Ltd which sought against them an order of perpetual silence.  BHUNU J found that the 2^ndapplicant and Bobby Maparanyanga were abusing court process because of the numerous applications they had by then made against Ashman (Pvt) Ltd claiming the cancellation of the transfer of Lot I Willowvale to it after the sheriff’s sale in execution and the reinstatement of 2^ndapplicant’s title to the property.  He however decided not to grant perpetual silence against the 2^ndapplicant and Bobby Maparanyanga but granted an order which would ensure that the 2^ndapplicant and Bobby Maparanyanga would not institute further proceedings before paying Ashman (Pvt) Ltd’s costs for previous proceedings and security for costs of the proceedings to be instituted.  His order reads as follows:-

1. That the respondents are free to institute any legal proceedings against the applicant and its subsidiaries after meeting all the legal costs as ordered by this court in all previous legal proceedings.
2. That before instituting fresh legal proceedings against the applicant and its subsidiaries in respect of the property known as Lot I Willowvale, Gleneagles Road, Willowvale, Harare the respondents shall furnish security for costs to the satisfaction of the registrar. (emphasis added)

The applicants have instituted fresh proceedings against Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd, in HC 2610/05 and HC 3168/05 without complying with BHUNU J’s  orders.  Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd which is Ashman (Pvt) Ltd’s subsidiary objected and raised the issues with the Registrar of the High Court.  The Registrar of the High Court raised the issues with the applicants.  The applicants then paid the outstanding legal fees and furnished security for costs.  Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd then filed their notice of opposition and opposing papers and the counter application.  The time within which they had to file their notice to oppose the applications had lapsed.  The issues now raised are whether the process filed by the applicants before complying with BHUNU J’s orders are valid and whether the notice of opposition and counter application filed after the lapse of the period within which Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd, were entitled to oppose had lapsed are properly before the court.

The orders granted by BHUNU J are clear.  The applicants could only institute fresh proceedings over Lot I of Willowvale after satisfying two conditions.  The two conditions are:-

1. “After meeting all legal costs as ordered by this court in all previous proceedings” and
2. “After furnishing security for costs to the satisfaction of the registrar.”

The clear meaning of the orders granted is that these conditions had to be met before the applicants instituted fresh proceedings.

Miss Mabuye for the applicants submitted that previously incurred costs can only be a bar to further proceedings where costs have been taxed and demand has been made for payment, coupled with proof of wilful refusal by the debtor to make such payments.  These submissions are correct when dealing with a general bar but are not relevant in the present proceedings as we are here dealing with what the applicants were ordered to do before instituting fresh proceedings.  In particular the applicants were ordered to furnish security for costs to the satisfaction of the Registrar before instituting fresh proceedings against Ashman (Pvt) Ltd and its subsidiaries in respect of the property known as Lot I of Willowvale.  This condition is clear and specific on what the applicants had to do before instituting fresh proceedings.  Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd were therefore correct in bringing the applicants’ failure to comply with the orders to the Registrar and refraining from taking further action until that issue was resolved.  In fact the Registrar should have refused to issue the new applications before the applicants met the conditions set in BHUNU J’s orders.  The applications were therefore accepted due to the Registrar’s error.  They are in fact a nullity in respect of Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd.  The Registrar’s attempts to correct the situation do no validate what was a nullity at the time it   was filed..  I must now consider the effect of the decision I have arrived at on Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd’s entitlement to file their notice of opposition and counter application soon after the applicant’s purported compliance with BHUNU J’s orders as demanded by the Registrar’s letter.  They filed their notice to oppose and the counter application when an officer of this court indicated they could now do so.

The fault was on the applicants’ failure to comply with BHUNU J’s orders and the Registrar’s failure to correctly interpret those orders.  I would in the circumstances in terms of Rule 4 C(a) of this court’s Rules condone Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd’s failure to strictly comply with the rules.

As regards the effect of the dismissal of the applicant’s application on Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd’s counter application the provisions of Rule 229A(3) of the High Court Rules 1971 are clear.

The stay, discontinuation or dismissal of the applicants’ application does not affect the counter application.  Rule 229A (3) provides as follows:-

“229A(3)  If in any application in which the respondent files a counter application under subrule (1) the application is stayed, discontinued or dismissed, the counter application may nevertheless be proceeded with.”

 

In the present case there is no reason why the counter application should not be proceeded with.  The fact that the main applications against the applicants in the counter application have to be dismissed for failure to comply with BHUNU J’s orders demonstrates the need for the relief sought in the counter application.

 

Res  Judicata

            The respondents also said the issues raised by the applicants were raised in HC 10851/96 and were dismissed by ZIYAMBI J (as she then was).  In HC 10851/96 the applicants sought the cancellation of the transfer of the property to Ashman (Pvt) Ltd and the reinstatement of its deed of transfer.  The respondents in that case were the Minister of Justice, the Registrar of Deeds and Ashman (Pvt) Ltd.

            The requisites of a plea of res judicata are that:-

1. the action already decided upon must have been between the same parties as those in the case in which the plea is raised or their privies.
2. concerning the same subject matter and
3. founded upon the same cause of complaint as in the action in which the defence is raised.

I refer to the case of Wilson Nakunyunda Banda and forty five others v Zimbabwe Iron and Steel Corporation SC 54/99 where SANDURA JA at page 3 of the cyclostyled judgment said:-

“The requisites of the plea of res judicata have been set out in a number of previous cases.  In Pretorius v Barkly East Divisional Council 1914 AD 407, SEARLE J set them out as follows at p 409:-

“As to the first points the requisites for a plea of res judicata have several times been laid down in this court.

 

The three requisites of a plea of res judicata, said the Chief Justice in Hiddingh v Denyssen (3 Juta p 424) quoting voet (44.2.3) are that the action in respect of which judgment has been given must have been between the same parties or their privies, concerning the same subject matter and founded upon the same cause of complaint as the action in which the defence is raised.........

 

In order to determine the cause of complaint, the pleadings and not the evidence in the case must be looked at.”

 

In the application dismissed by ZIYAMBI J (as she then was) the cause of action was the same alleged fraud, corruption and irregularities by the sheriff.  There is no doubt that Ashman (Pvt) Ltd which was one of the respondents in that case can raise the defence of res judicata.  The 1996 case was between it and the applicants.  It was based on the alleged fraud, corruption and irregularity by the sheriff.  It sought the same relief as is being sought in the present proceedings.  The applicants’ counsel Miss Mabuye argued that res judicata does not apply because she could not find ZIYAMBI J’s written judgment.  She further submitted that for res judicata to apply there must be a final and definitive judgment on the issues and the relief being sought by the applicants.  She submitted that in the absence of a written judgment it can not be established that the judgment of ZIYAMBI J was a final and definitive one.  Mr Madya, Mrs Wood and Mr Mutasa for the respondents submitted that ZIYAMBI J’s judgment is final and definitive even if the written judgment could not be found.  They submitted that ZIYAMBI J could have delivered an ex tempo judgment which was not transcribed as the judgment was not appealed against.  The order granted by ZIYAMBI J in HC 10851/96 reads as follows:-

“Whereupon after reading documents filed of record and hearing counsel it is ordered that the application be and is hereby dismissed with costs.”

 

It is therefore a definitive judgment based on the merits of the application and submissions by the parties.  In the case of Towers v Chitapa 1996(2) ZLR 261H a default judgment previously handed down was held to be an insuperable obstacle as a plea of res judicata could be based on it.  If a plea of res judicata can be premised on a default judgment I see no reason why it can not be raised in this case just because there is no written judgment.  What is important is the cause of action, the relief sought and the complaint which can be ascertained from the documents filed of record.  I must also point out that the record in HC 10851/96 has the Judge’s handwritten notes on which her judgment was based.  In the notes it is clear that she dismissed the application after considering the applicants allegations and the law touching on sales in execution.  I am left in no doubt that the judgment in HC 10851 is a definitive and final one.

Mrs Wood further submitted that the judgment though not between the applicants and the sheriff (her client) it is binding on the world as it is a judgment in rem.  It is trite that a judgment in rem binds not only the parties but the world.  I refer to the case of Towers v Chitapa (supra) at 271A where GILLESPIE J said:-

“As to the first of these elements patently the defendant herself was not a party to the default judgment.  This however would not disqualify a plea of res judicata provided that the judgment in question were one either in rem or if relating solely in personam, the rights asserted by the party in the later case were derivative through the party in the previous matter.  This is what is meant by a person being a privy to a party to previous litigation.” (emphasis added.

 

In the present case the sheriff is employed by the Ministry of Justice.  It is his conduct for which the Minister of Justice was sued in HC 10851/96.  The basis on which cancellation of the transfer to Ashman (Pvt) Ltd was being sought was the alleged corruption, fraud and irregularity by the sheriff.  I am persuaded that if the judgment of ZIYAMBI J was in rem then the plea of res judicata is available to the sheriff.  If its a judgment in personum the plea of res judicata would again be available to the sheriff who is a privy to the Minister of Justice who the applicants sued in the dismissed application under HC 10851/96.

The same reasoning would apply to Ashtec (Pvt) Ltd which is a subsidiary of Ashman (Pvt) Ltd.

For the rest of the respondents I must determine whether or not the judgment in HC 10851/96 is one in rem before deciding whether or not the plea of res judicata is available to them. 

In the case of Madondo v Fyfe & Ors 1988(1) ZLR 138 (HC) at 141 A-D REYNOLDS J dealing with the definition of a judgment in rem said:-

“Mr Sayce also submitted that the judgment was in personum and not in rem as had been suggested by Mr Dube.  I would agree with Mr Sayce on this point.  A judgment in rem has been defined as:-

“The judgment of a court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing, as distinct from the particular interest in it of a party to the litigation.  Apart from the application of the term to persons, it must affect the ‘res’ in the way of condemnation, forfeiture declaration of status or title, or order for sale or transfer.”  (Halsbury’s Laws of England 4^thEd. (Halsham) Vol 16 para 1522)

 

It seems to me that the judgment delivered by the magistrate did not determine the status of the property or any of the other matters included in this definition.  Indeed no real rights were affected by the judgment at all, and it was only the personal rights of the parties that were affected.” (emphasis added)

In HC 10851/96 the applicants sought cancellation of the transfer of Lot 1 of Willowvale, Harare to Ashman (Pvt) Ltd and reinstatement of their own title deed.  If the application had succeeded, the result would have been the taking of the real right of ownership from Ashman (Pvt) Ltd and reinstating that real right to the applicants.  The dismissal of that application determined the status of Lot 1 of Willowvale as follows:-

1. The real right of ownership was declared to remain with Ashman (Pvt) Ltd.
2. The disposition of Lot 1 Willowvale to Ashman (Pvt) Ltd by the sheriff was confirmed.
3. It left the status of Ashman (Pvt) Ltd as owner of Lot 1 of Willowvale and that of the property as belonging to Ashman (Pvt) Ltd.

I am therefore satisfied that HC 10851/96’s judgment was in rem and binds the whole world.  This means while that judgment stands the issue of the status of Lot 1 of Willowvale can not be litigated on again.  That judgment must be obeyed and be given effect.

In the case of Wolfenden v Jackson 1985 (2) ZLR 313 (SC) at 316C GUBBAY JA (as he then was) dealing with the plea of res judicata said:-

“The exceptio rei judicatae is based principally upon the public interest that there must be an end to litigation and that the authority vested in judicial decisions be given effect to even if erroneous.” (emphasis added)

 

To allow the applicants to litigate again and again in the face of this court’s judgment in HC 10851/96 dismissing its similar application would have the effect of unlawfully taking away the authority of that judgment.  A definitive and final judgment of this court can only be challenged through the appeal process.  No appeal was lodged in this case and for a period of 10 years.  The applicants were all along skirting around this judgment making applications which were being subsequently withdrawn.  It seems to me the applicants knew that the judgment was unassailable.  Having avoided appealing against it the judgment now firmly remains an insuperable obstacle to the applicants’ claim for cancellation of the transfer of Lot I Willowvale to Ashman (Pvt) Ltd.

In view of the sheriff’s, Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd’s counter applications for perpetual silence I find it necessary to examine the merits of the applicants’ applications.

In my view perpetual silence should not be lightly granted.  It can only be granted when the court is of the firm belief that the litigant against whom the order is being sought is abusing the court’s process and has no hope of succeeding in his alleged abusive litigation.  I am aware that a successful plea of res judicata can confirm that the applicants are abusing the court’s process but an examination of the merits can assist in determining whether or not perpetual silence should be granted.

 

The Merits

As already indicated the applicants’ attack is mainly premised on the belief that:-

1. The sheriff’s sale was irregular.
2. The sheriff acted corruptly and fraudulently in proceeding with the sale in execution inspite of ZIMBANK and Gill, Godlonton & Gerrans’s instructions to him to stop the sale.
3. That the other respondents ZIMBANK, Gill, Godlonton & Gerrans, Ashman (Pvt) Ltd, Ashtec (Pvt) Ltd and Stanbic colluded with the Sheriff in corruptly and fraudulently selling the applicant’s property.

 

Irregularity

The sheriff denies that his conduct in proceeding with the sale was irregular.  He said he acted in terms of rule 327 of the High Court Rules 1971 because Stanbic had indicated that it wanted to participate in the proceeds of the sale in execution of the applicant’s property.  Annexure A2 to Ashman (Pvt) Ltd’s opposing affidavit on page 47 clearly indicates that Stanbic had indicated its intention to participate to the sheriff. The letter from Honey & Blanckenberg dated 12^thDecember 1994 reads:-

“We refer to the advertisement in the Herald of 7 December by Crusader Real Estate Consultancy (Pvt) Ltd that it will sell, by public auction Lot 1 of Willowvale on Friday 16^thDecember 1994.

 

Enclosed please find our client’s writ of execution in case No. HC 2730/92 for recovery of the sum of $151 048.32 from Harare Car Breakers Sales and Repairs together with a copy of the bill of costs for $3 673.93.

 

We hereby lodge the writ and bill of costs for participation in the proceeds of the sale of the immovable property.”

 

After receiving the participating writ the sheriff had no option but to comply with rule 327(2) of this court.  Rule 327(2) provides as follows:-

“327(2) Where more than one writ has been lodged with the sheriff in respect of any property to be sold in execution, the sheriff shall not cancel or consent to the cancellation of the sale in execution unless all the writs have been withdrawn or suspended in terms of subrule 1.”  (emphasis added)

 

Rule 327(2) compels the sheriff to proceed with the sale even if the original judgment creditor instructs him to suspend the sale if more than one writ has been lodged with him.  He can only stop the sale if all the writs have been withdrawn.  In the present case ZIMBANK had suspended its writ but Stanbic had not, so the sheriff was compeled to proceed with the sale in execution.  The sheriff did not therefore commit any irregularity when he proceeded with the sale in the circumstances.

The applicants also question why the sheriff took transfer of the property in his own name and subsequently transferred it to Ashman (Pvt) Ltd.

The applicants relied on Annexure I to their founding affidavit in HC 3168/05 for this allegation.  Annexure I is the deed of transfer to Ashman (Pvt) Ltd.  The applicants’ misconception arises from page 1 of Annexure I which reads:-

“Know all men whom it may concern.

That Craig Sutherland appeared before me Registrar of Deeds, he being duly authorised thereto by a power of attorney granted to him by Charles Nyatanga in his capacity as the Additional Sheriff for Zimbabwe.” (emphasis added)

 

If the applicants had read this without undue emotion they would have realised that Mr Charles Nyatanga was acting in his official capacity as the Additional Sheriff of Zimbabwe.  He was clearly not transferring a personal property as alleged by the applicants.  He was officially transferring the applicants’ property which he had sold in execution.

Rule 367 of this court authorises the sheriff to effect transfer of a property sold in execution to the purchaser.  It provides as follows:-

“367(1) whenever, if the sale had not been in execution, it would have

been necessary for the execution debtor to endorse a document or to           execute a cession in order to pass the property to a purchaser, the sheriff may so endorse the document or execute the cession as to any property sold by him in execution.

(2) The sheriff may also as to immovable property sold by him in execution, do        anything necessary to effect registration of transfer.

1. Anything done by the sheriff under this rule shall be as valid and effectual as if he were the execution debtor.” (emphasis added)

 

Rule 367(2) and (3) therefore authorised the sheriff to stand in the applicant’s shoes and transfer Lot I Willowvale to Ashman (Pvt) Ltd as he had sold it in execution.  There was therefore no wrong doing on the sheriff’s part.  He was acting within his powers so his conduct in transferring Lot 1 of Willowvale to Ashman (Pvt) Ltd was not irregular.

 

Disbursements

The applicants’ questioned the distribution plan’s failure to disburse to Stanbic and attempted to attach irregularity corruption and fraud to it.  The distribution plan whose details I have already dealt with above clearly indicates to whom the $900 000.00 raised from the sale was disbursed.  The disbursement also clearly indicates that the bulk of the proceeds in the sum of $808 804.27 went to Beverly Building Society which was the 1^stand 2^ndbond holder.  The fact that Beverley was a 1^stand 2^ndBond holder means it was a preferent creditor whose debt had to be satisfied first.  Again I find no wrong doing in the sheriff’s dibursement to a preferent creditor.

The next disbursement was to Gill, Godlonton & Gerrans on behalf of the judgment creditor ZIMBANK which had agreed to the suspension of the sale.  The applicants raised dissatisfaction because a creditor who had wanted to cancel was paid while Stanbic whose writ caused the sale to proceed was not paid.  In view of rule 331(3) of this court nothing turns of this allegation.  Rule 331(3) provides as follows:-

“331(3) Subject to any hypothec existing prior to attachment, all writs of execution lodged with the sheriff or his deputy, as the case may be, in accordance with the provisions of subrule (2) of this rule shall rank pro rata in the distribution of the proceeds of the property or goods sold in execution.” (emphasis added)

 

            The sheriff in fact indicated in his disbursement that the $72 259.59 was ZIMBANK’s pro rata share.  The fact that ZIMBANK had agreed to the stopping of the sale did not affect the ranking of its writ.  Its writ remained the first to be received by the sheriff.  It therefore ranked first before Stanbic’s.  ZIMBANK had therefore to be paid first before Stanbic because of its writ’s seniority in ranking when compared to Stanbic’s.  I again find no wrong doing by the sheriff.

            ZIMBANK acknowledges receipt of the disbursement.  The applicants do not dispute that they owed money to Beverley Building Society.  In fact in Annexure B to Ashman (Pvt) Ltd the applicants admit that the property was bonded to Beverley Building Society.  As ZIMBANK and Beverley were applicants’ creditors the proceeds of the sale in execution were properly disbursed to persons who were entitled to payments from proceeds of the sale in execution.

            Having considered the circumstances under which the sheriff proceeded with the sale, the manner in which he transferred the property and thereafter disbursed the proceeds and found them to be all in accordance with the law and the rules of this court I find that the applicants’ applications could not have succeeded even if the plea of res judicata had not been upheld.

 

Corruption, Fraud and Collusion

            Having found no irregularity in the sheriff’s conduct it follows that there was also no fraud or corruption in the manner he conducted the sale.  It also follows that there was no collusion from the other respondents.  There was in fact nothing to which they could have colluded.

 

Costs

            The respondents applied for costs on the higher scale.  They said this was because some of them i.e. ZIMBANK and Gill, Godlonton & Gerrans were unnecessarily cited in these applications.  The sheriff, Ashman and Ashtec (Pvt) Ltd say it is because this case was settled in HC 10851/96 and the applicants brought the applications for the purpose of harassing them.  I agree that a party who brings applications on an issue which is res judicata will be abusing court process and will obviously be harassing the other party.  This is especially so if as in this case the applications are filed in their multiplicity seeking the same relief.  The respondents further seek their costs against Bobby Maparanyanga because the applicants are no longer functional.  This was revealed by the applicants’ own affidavit.  In the circumstances I am satisfied that the applicants’ applications should be dismissed with costs on the higher scale against Bobby Maparanyanga.

 

Counter Applications

            The sheriff, Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd made counter applications against the applicants now the respondents in the counter application.  They seek orders of perpetual silence against the respondents.  They will be referred to as the applicants in this part of the judgment.  They base their applications on the current three applications which cite each of them twice and for the same relief.  They say many other applications were made against them between 1996 and 2005.  The respondents did not prosecute any of them to finality but would withdraw them and thereafter institute new ones.

            On page 7 of their founding affidavit Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd said:-

“It is clear that the applications are a further attempt at harassing the applicants......  In particular it is to be noted that two applications were issued almost at the same time.  The first one in case No. 2610/05 was issued on 8^thJune 2005.  The second application was issued on 28^thJune 2005.  They all seek the same relief and make essentially the same allegations.  Indeed if the first and second respondents’ intention was to seek a reversal of the transfer of the property from the first applicant there would have been no need at all to file two applications seeking the same relief.”

           

            Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd also raised the issue of the issues raised in the applications being res judicata.

            The sheriff raised similar concerns.  He has also been subjected to numerous applications between 1996 and 2005.  The applications would then be withdrawn and be followed by fresh ones on the same facts.  Complains have been raised against him by the respondents to Senior Government Officials and in news papers on the same facts which were the subject of litigation in HC 10581/96.

            I have already found that the issues raised in the respondent’s applications are res judicata so the applicants’ complaint against the respondents in the counter applications are valid.  Miss Mabuye for the applicants in the main applications and respondents in the counter applications conceded that all the three applications by her clients sought the same relief hence the consent to consolidating the applications.  In view of that concession I accept Ashman (Pvt) Ltd and Ashtec (Pvt) Ltd’s submissions that there was no need to sue them twice within 20 days claiming the same relief in two different applications.  The conclusion that this was intended to harass them is inescapable.  This is especially so in view of the dispute having been settled when ZIYAMBI J (as she then was) dismissed the respondent’s application in HC 10851/96 which was based on the same facts and seeking the same relief.  The respondents did not appeal against that decision.  They instead resorted to making numerous applications which they did not prosecute to finality.  The mere fact that the respondents avoided the appeal procedure points towards an intent to harass as nothing could be achieved by the numerous applications while the judgment in HC 10851/96 stood in favour of the applicants.  Making applications similar to it could not affect its validity.  In their various opposing affidavits the applicants pointed this out but the respondents continued to make fresh applications.

            Miss Mabuye for the respondents did not dispute that numerous applications were made and were subsequently withdrawn.  She sought to explain away the several applications on respondents having been self actors who thought their property had been irregulary transferred.  She suggested that the respondents be punished by being ordered to pay costs on a higher scale.  She urged the court not to punish them with perpetual silence.

            It must be stated that perpetual silence is not intended to be punishment to the respondent but protection to the party who is being subjected to unwarranted suits.  In the case of Brown v Simon 1905 T.S. 311 it was held to be a useful means of bringing to a conclusion all threatened actions.  Its purpose is therefore to protect the applicant against threatened legal action and not to punish the person threatening the applicant with legal action. The applicants in the counter applications are therefore not seeking punishment for the respondents but protection from being further harassed by frivolous and vexatious applications and law suits from the respondents.

            It must be noted that Miss Mabuye’s concession that numerous applications were made was properly made in view of the number of applications detailed in documents filed for the three applications and the two counter applications.

            I therefore find that the respondents in the counter applications have on numerous occasions abused this court’s process by making applications for purposes of harassing the applicants.

            My judgment in the main applications clearly demonstrates that the respondents’ belief that their property had been wrongly transferred were baseless.  They avoided an appeal against ZIYAMBI J’s decision in HC 10851/96 in preference to applications which could never succeed and were as a result subsequently withdrawn.

            In the case of Mhini  v Mapedzamombe 1999 (1) ZLR 561(H) at 566F, GARWE J (as he then was) said:-

“In all the circumstances, I am satisfied that the conduct of the respondent amounts to an abuse of the process of this court.  The possibility that he may bring further proceedings against the applicant in the same context cannot be ruled out.  The order by ADAM J that he was not to institute any further proceedings without the leave of the court first being granted has been ignored.” (emphasis added)

 

In this case the respondents in their opposing affidavit claim that they have “a constitutional right to make applications until they get back their property.”  This means if the orders sought are not granted the applicants will continue to suffer harassment from the respondents.  BHUNU J ordered the respondents not to institute proceedings without first paying applicants’ costs but they in defiance of that order instituted these proceedings without paying those costs nor providing security for costs.

I am satisfied that if the orders sought are not granted the respondents will continue harassing the applicants through frivolous and vexatious applications.

I am satisfied that the applicants in the counter applications have made out a case justifying the granting of an order of perpetual silence.

On costs the applicants seek costs on a higher scale against Bobby Maparanyanga as the respondents have in their affidavit said that they are no longer operational and will therefore not be able to, pay the respondents’ costs. An order of costs against Bobby Maparanyanga their managing director and the obvious brains behind the numerous applications is justified.

It is therefore ordered as follows:- 

1. The applicants’ applications in HC 3168/05; 2610/05 and 4744/05 are dismissed with costs on the higher scale against Bobby Maparanyanga.

 

1. That first and second respondents’ in the counter application in HC 3168/05 be and are hereby ordered and directed not to institute any further proceedings against the applicants and/or their subsidiaries or making any complaint to any authority regarding the purchase by and transfer to the first applicant of a property know as Lot I of Willowvale, Gleneagles Road, Harare.

 

1. That Bobby Maparanyanga pays the costs of this counter application on the higher scale.

 

1. The respondents in the counter application in HC 4744/05 and their subsidiaries be and are hereby barred from instituting legal proceedings against the applicant in the counter application both in his official and personal capacity in respect of the property known as Lot I Willowvale, Gleneagles Road, Willowvale, Harare.

 

1. That Bobby Maparanyanga the respondents’ director pay the applicant’s costs on the higher scale.

 

 

 

 

 

 

 

 

 

 

 

Messrs Muvirimi Mabuye & Associates, the applicant’s legal practitioners

Messrs Gill, Godlonton & Gerrans, the 1^stand 2^ndrespondent’s legal practitioners in HC 3168/05

Messrs Wintertons, the 3^rdand 4^threspondent in HC 3168/05 and 1^strespondent in HC 2610/05’s legal practitioners

Messrs Byron Venturas & Partners, the 6^threspondent in HC 31268/05 & 2^ndrespondent in HC 4744/05’s legal practitioners