Steelnet Zimbabwe Limited V Caliment Enterprises (Pvt) LTD AND THE Deputy Sheriff (Norton)

### Preamble
1
HH 381-2012
HC 10979/12
STEELNET ZIMBABWE LIMITED
versus
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STEELNET ZIMBABWE LIMITED
versus
CALIMENT ENTERPRISES (PVT) LTD
and
THE DEPUTY SHERIFF (NORTON)

HIGH COURT OF ZIMBABWE
BERE J
HARARE, 21 SEPTEMBER 2012

Urgent Chamber Application

C. Nhemwa, for the Applicant
C.W.Gumira, for the Respondent

BERE J: When submissions were made by both counsels on the preliminary points raised by the first Respondent, The Applicant’s counsel expressed the view that I probably had not followed the gist of the Applicant’s position. I want to assure counsel that I was quite alive to the submissions he made that in his perception the judgment debtor does not exist having lost its identity after the dissolution of TH Zimbabwe (Private) Limited in 2002, Hastt Incorporation (Zimbabwe) (Pvt) Limited, BMA Fasteners (Private) Limited & Tube and Pipe Industries (Private) Limited. It was on the ashes of these companies that the Applicant was formed.

The argument was therefore that the assets, some of which have already been sold in execution belong to the Applicant hence the Applicant’s desire to have a declaratory order in an effort to spare the company assets.

The first Respondent has raised two preliminary points.

The first point raised was that basically the same application was brought before this court and instructive comments were made by a Judge of this court on 7 November 2011. The matter was therefore res judicata and it was not competent for the Applicant to recycle fundamentally the same application before this court, so the argument went.

The second point was that the alleged urgency in this matter, the application coming after the dismissal of the interpleader action on 11 July 2012 was man-made or self created and therefore ought to be dismissed.


It is clear that when the instructive notes of 7 November 2011 were ignored by the applicant, the respondent filed a chamber application for the dismissal of case number HC 11365/11 which was duly granted by my brother HUNGWJE J on 11 July 2012. This dismissal remains in force as no application for rescission of that judgment was subsequently filed. In a way, this matter is indeed *res judicata*.

Instead of pursuing the earlier application, the applicant has now filed the instant application seeking a declarator on substantially the same matter that was conclusively dealt with by this same court.

Given the history of this case what the applicant has simply done is to bring back to this court the interpleader application and termed it an application for a declarator.

A closer look at the certificate of urgency filed by one Oscar Gasva in the original application and the certificate of urgency filed by Kudzai Madzivanyika on 20 September 2012 shows these certificates are one in the same thing despite having been separated by a period close to a year.

It is not possible to distinguish the contents of the founding affidavit of Christopher Masuri who has remained the central figure in both the application filed in November 2011 and the current application. Clearly the cause of action is indistinguishable in both matters. The Applicant’s desperation is understandable but the course adopted is clearly wrong at law. Once a matter has been determined it cannot continue to be recycled in the same court in the misplaced hope that the presiding judge’s sympathy might be swayed in favour of a desperate Applicant.

Once this court had made a determination on the interpleader application on 19 July 2012 the Applicant had ample opportunity to persuade the court to revisit that decision by applying for rescission of that judgment in time. That judgment remains extant and it is clearly wrong for the Applicant to raise the issue of a declarator in order to torpedo or puncture the order of 19 July 2012.

The certificate of urgency filed by Kudzai Madzivanyika further makes startling revelations. It alludes to some property having already been sold and having fetched far less than 10% of their actual value.


It goes on to allege that “the Applicant will therefore suffer irreparable harm together with its over 100 strong work force, their dependants and all other stakeholders of the Applicant. There is also a high risk of the workers acting on their treat to violently avoid the assets of the company from being auctioned since they are of the view that the actions of the Respondents are illegal.”

These averments by Kudzai Madzivanyika either on their own or cumulatively cannot be the basis of this urgent application. What is clear is that when a determination which was adverse to the applicant was made on 19 July 2012 the Applicant adopted a casual or lackadaisical approach in taking steps to ensure that that decision which remains in force even to this day was reversed.

The Applicant has only reacted to execution which the first Respondent has now insisted must be pursued. Such an approach would never sustain the urgency of the matter for it is no doubt man-made or self created.

For these reasons I decline to treat this matter as an urgent one and I order that the Applicant pays costs on a higher scale for its carelessness in bringing back to court an already concluded matter.

C Nhemwa & Associates, Applicant’s legal practitioners
Sande & Associates, 1st Respondent’s legal practitioners
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