Judgment
No S.C. 48\2002
Civil
Appeal No 170\2001
CLEOPAS
SANANGURA v (1) MESSER ZIMBABWE (PRIVATE) LIMITED
(2) STANBIC BANK ZIMBABWE LIMITED
(3) NATIONAL
MERCHANT BANK (4) KINGDOM ASSET MANAGEMENT LIMITED
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & MALABA JA
HARARE
JUNE 11 & 19, 2002
E.
Ndizeye,
for the appellant
M.
Makuyana,
for the first respondent
No
appearance for the second, third and fourth respondents
SANDURA
JA: This appeal, which was only contested by the first
respondent, was struck off the roll with the consent of both
counsel,
but as there was no agreement on whether the wasted costs were to be
borne by the appellant or by the first respondent,
that issue remains
to be determined by this Court.
In
my view, the best way in which to determine the issue is to consider
first of all whether the appeal had any merit. If it had
any merit,
the costs should be borne by the first respondent. On the other
hand, if it was devoid of merit, the costs should be
borne by the
appellant.
The
relevant facts are as follows. The appellant was employed by the
first respondent as its Financial Manager. The first respondent
intended retrenching the appellant together with certain other
employees. Accordingly, retrenchment negotiations took place but
did not result in any agreement with the appellant.
However,
during the course of the negotiations the first respondent considered
that it had the right to dismiss the appellant on
the ground that he
had committed certain acts of misconduct. More specifically, it was
alleged that the appellant had converted
to his own use large sums
belonging to the first respondent.
Accordingly,
the first respondent suspended the appellant from his position and
sought approval for his dismissal from the Ministry
of Public Service
Labour and Social Welfare.
Before
that approval was granted, the appellant filed an urgent application
in the High Court seeking an order directing the attachment
of the
first respondents funds, before any judgment was granted in his
favour, and the payment of the attached funds to the appellant.
The
funds were in the custody of the second, third and fourth
respondents. The application was dismissed with costs. Aggrieved
by that decision, the appellant appealed to this Court.
In
my view, the appeal had no prospects of success. I say so for three
main reasons.
The
first reason is that in his application the appellant did not
disclose the existence of any litigation in which a claim was
being
made by him against the first respondent. In the circumstances, the
appellant sought the attachment of the first respondents
property
as security for an undisclosed claim which had not yet been
instituted against the first respondent. There was, therefore,
no
legal basis for the attachment sought, and this was a fatal defect in
the application.
Secondly,
the appellant did not disclose the total funds of the first
respondent which he sought to attach and why so much had to
be
attached. He simply sought an order attaching all the first
respondents funds held by the second, third and fourth respondents
without indicating the total amount required. He gave no reason for
claiming the attachment of all the funds as opposed to only
a part of
them. That is another fatal defect in the application.
Thirdly,
the appellant made no attempt to show the merits of his challenge to
his suspension and intended dismissal. In his founding
affidavit he
did not deal with the allegations of misconduct levelled against him.
This was a serious omission on his part because
the success of any
claim which he might have against the first respondent would depend
upon whether he had a good defence to the
first respondents
allegations of misconduct.
In
addition, there was no basis for the appellants allegation that
the first respondent was in the process of disinvesting from
Zimbabwe
and liquidating its assets.
In
the circumstances, the appellant failed to establish a prima
facie right to the
attachment, and it follows that the appeal had no merit.
It
is, therefore, ordered that the wasted costs shall be borne by the
appellant.
ZIYAMBI
JA: I agree
MALABA
JA: I agree
Gambe
& Associates,
appellant's legal practitioners
Mawere
& Sibanda,
respondent's legal practitioners
