Bankable Resources (Pvt) Ltd v The Additional Sheriff for Zimbabwe in Hwange N.O and Others

The applicant filed an urgent chamber application on 12 October 2017 seeking an interlocutory interdict to stop the second to sixth respondents from selling its property which had been attached to satisfy an arbitral award obtained against W & K Earth Movers and Plant Hire (Pvt) Ltd. The applicant had assumed the debt owed by W & K Earth Movers in terms of a judgment in case No. HC 8301/11. The parties had concluded an agreement on 5 August 2017 to stay execution, with applicant paying US$7,000 as first installment and the balance to be paid within two months. Following disagreements over statutory deductions and amounts paid from previous sheriff sales, the respondents resuscitated execution and instructed the first respondent to advertise and sell the attached assets. The applicant claimed ownership of the attached property based on a Lending Agreement and Deed of Settlement allegedly transferring ownership from W & K Earth Movers to the applicant.

• Whether the applicant had locus standi to bring the urgent application given the disputed ownership of the attached property
• Whether the deponent to the founding affidavit was properly authorised to bring the application on behalf of the applicant
• Whether the matter met the requirements of urgency and whether the urgency was self-created

The application was struck off the roll. The applicant was ordered to pay the respondent's costs on the ordinary scale.

An applicant seeking to interdict execution of property must establish proper locus standi by providing credible evidence of ownership, particularly where property was attached on another entity's premises pursuant to a judgment against that entity. Mere documentary agreements without proof of payment or performance are insufficient to establish ownership. A director of a company who is neither the Chairman nor Managing Director must provide specific proof of authorization to represent the company in court proceedings, particularly where the company has previously provided such authorization in other matters. An urgent application will be struck off where the applicant delays in approaching the court without explanation after becoming aware of the need to act, constituting self-created urgency.

The court observed that it is one thing to sign an agreement and another to pay in terms of the agreement, noting that the history of many cases has shown parties are quick to sign agreements but slow to pay as stipulated. The court noted that payment cannot be assumed just because there is an agreement; payment must be confirmed through evidence of movement of funds from one party to the other. The court commented that the matter was a good example of self-created urgency where an applicant does nothing until the day of reckoning approaches and then cries urgency when execution starts. The court found no jurisdiction for costs on the higher scale since the case did not proceed to the merits.

This case demonstrates the strict requirements for urgent applications in Zimbabwean law and emphasizes the importance of establishing locus standi through proper documentary evidence. It illustrates that courts will scrutinize claims of ownership carefully, particularly where there are discrepancies in documentation and lack of proof of payment. The case also reinforces that applicants cannot delay in approaching the court and then claim urgency when faced with imminent execution. The judgment highlights the need for proper authorization when artificial legal persons are represented before court, particularly where past practice has shown formal authorization being provided.