RIGID GROUP TRANSPORT (PVT) LTD

versus

REMINGTON GOLD (PVT) LTD

and

INGWE PROPERTY HOLDINGS (PVT) LTD

and

INGWE PROPERTY HOLDINGS TRUST

and

ESPOL ARICA (PVT) LTD

and

COLLEN KWARAMBA

HIGH COURT OF ZIMBABWE

GOWORA J

HARARE, 8 February 15 June 2011

Opposed Court application

S Simango, for the applicant

F F Nyamayaro, for first, second and third respondents

            GOWORA J:  On 24 November 2010 I issued a Provisional Order under Case No HC 8153/10 in favour of the first, second and third respondents herein. The applicant, the fourth and fifth respondents and one Wonder Killian Jakalasi were the respondents therein. The applicant intends to note an appeal against the order granted and has approached me for leave to note the appeal. The respondents filed papers wherein they opposed the grant of leave sought and I therefore directed that the parties file heads of argument for my assistance.

            The founding affidavit in support of this application has been deposed to by Wonder Killian Jakalasi who was the fifth respondent under Case No HC 8153/10. He has described himself as the administrator of the applicant. He avers that he is aggrieved by the first paragraph in the interim relief that I granted and therefore wishes to appeal against the order granted. He avers that the applicant purchased the assets which are the subject matter of that order from the fourth respondent and that the payments were effected directly to the first and second respondents. He avers further that a handover of the assets to a responsible person would be prejudicial to the interests of the applicant herein who is an innocent third party. He contends that as the applicant is an innocent third party this court erred when it ordered that a third party nominated by the Sheriff should manage and secure the assets on behalf the Sheriff. He contends further that this court erred when it granted an interim order against a litigant who was not a party under Case numbers HC 3464/10 and HC 3463/10. He contends further that the assets are under the control of the applicant who has not been joined as a party to the main dispute. He also contends that the court erred when it ordered that the property be handed over to another party when the protection order granted to the first respondent by consent was sufficient to protect their interests.

            The respondents have, in opposing the relief being sought, raised a point in limine, and have contended that the applicant is approaching the court with dirty hands, in that it is alleged that instead of handing the property over as required in the interim order, the applicant has alienated or vandalised the assets recovered to such an extent that, what remains of the trailers and trucks is basically scrap. This is despite the applicant, the fourth and fifth respondents having consented to the anti-dissipation order granted in the interim. The respondents contend in fact that the applicant, the fourth and fifth respondents have refused to hand over the assets to the nominated representative of the Sheriff as ordered by myself. They contend further that what remains of the assets has no value. In addition, the respondents contend that the application for leave to appeal is intended to frustrate the execution of the provisional order and which execution the applicant is alleged to have openly defied and ground to a halt.

The applicant did not file an answering affidavit so the point in limine has not been responded to. Instead, the applicant has sought to respond to those factual allegations in heads of argument. I requested Mr Simango to provide authority for his view that a litigant can, in motion proceedings, respond to facts raised in opposing papers by adducing facts from the bar through argument. He was unable to find authority. I find therefore that the allegations that the applicant has refused to abide by the order issued by me have not been challenged. Can I therefore find that the applicant has dirty hands and refuse to hear it?

In Associated Newspapers of Zimbabwe (Pvt) Ltd v Min of State for Information & Publicity & Ors 2004 (1) ZLR 538 the Honourable CHIDYAUSIKU CJ said at p 548B-C

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

The Supreme Court in the matter above upheld the point in limine. In casu, the respondents before me have filed together with their papers returns filed by the Deputy Sheriff for Harare subsequent to the issuance of the Provisional Order by myself. When the matter was argued, the applicant, fourth and fifth respondents and Jakalasi consented to a non dissipation interdict. A list of the assets which were subject to the order was annexed. It is an exhaustive list. It lists three single trailers and twelve front link double trailers. On the returns filed by the deputy sheriff there are no trailers that were found. There are twenty one tri axles on the list. The deputy sheriff found none. There are numerous vehicles listed as non runners. These do not feature on the list submitted by the deputy sheriff. There are also workshop tools and equipment. There are no listed items of this description which were recovered by the deputy sheriff.

On 17 January 2011 the deputy sheriff recovered a truck which had been involved in a collision. It had to be towed from the scene of the accident. Again on 17 January 2011 various movables were placed under attachment, including a truck without wheels. On 18 January 2011 the deputy sheriff attempted to attach a Nissan Sunny from a Mr Kwaramba and was advised that it had been sold by the same.      

It is the hallmark of any functional judicial system to expect that any orders that it  issues are obeyed. It is also a necessary adjunct to the maintenance of law and order that there exist in any system the rule of law. It is axiomatic with rule of law that court orders are obeyed. A citizen who openly defies the law cannot be heard by the courts until he is in a position to approach the court with clean hands.

From the returns it is obvious that the applicant has not complied with the order that it consented to. The major portion of the property has disappeared from the premises where it was when the matter was heard by me. The applicant clearly has no respect for the law, which law it now expects to grant it relief. It has clearly shown its contempt even in the manner in which the deputy sheriff, an officer of this court would be kept waiting for hours on end for the provisional order to be effected. In my view, the applicant having shown such a disdain of the law by failing to abide by the order which itself consented to cannot seek to be afforded the privilege of audience from this court. That it has dirty hands cannot be disputed and its actions are especially reprehensible when viewed against the fact that it has itself defied an order which it gladly consented to and gave a false sense of security to the respondents through that order. It has unclean hands and it does not deserve any indulgence from this court.

In the premises the point in limine is upheld and the application for leave to appeal is hereby dismissed. The applicant is ordered to pay the costs of this application.

Nyikadzino, Koworera & Associates, applicant’s legal practitioners

Mutamangira & Associates, first, second & third respondents’ legal practitioners