Chenjerai Mawumba and Juliana Magombedze and Fadzai Nicola Mawumba versus Air Namibia Proprietary Ltd

The applicants, a Zimbabwean family comprising husband, wife and three minor children, made arrangements to travel to Turkey on an excursion. They purchased return air tickets from Robert Gabriel Mugabe International Airport to Turkey via Windhoek and Frankfurt on Air Namibia (the respondent). They obtained Turkish visas, travel insurance, and pre-paid hotel accommodation at the Sheraton Istanbul Atakoy hotel for 6 nights. On 15 February 2017, they boarded the respondent's flight to Windhoek. Upon arrival in Windhoek, the respondent's officials refused them permission to board their confirmed connecting flight to Turkey, allegedly because of their Zimbabwean nationality. The applicants alleged they were held at the airport for 3 days in poor conditions without proper food or accommodation, subjected to insults and degrading treatment, and ultimately deported back to Zimbabwe. They became aware of a letter from the respondent's country manager to the Namibian ambassador admitting to barring Zimbabweans from travelling through Europe even with valid travel documents, on suspicion they would seek political asylum. The applicants sought to attach the respondent's property (office furniture and aircraft) to found and/or confirm jurisdiction of the Zimbabwean High Court to enable them to sue for contractual damages of $7,815.13 and delictual damages of $1 million for unlawful detention, deprivation of freedom, and degrading treatment.

• Whether the applicants had established a prima facie case for breach of contract of carriage sufficient to justify attachment of property to found jurisdiction
• Whether the applicants had established a prima facie case for delictual damages arising from unlawful detention and degrading treatment
• Whether it was appropriate to grant an ex parte application for attachment of a peregrine defendant's property without notice to the respondent
• Whether the court had jurisdiction to order attachment of the respondent's movable property and aircraft within Zimbabwe
• Whether the remedy of attachment to found jurisdiction should be granted as a matter of judicial discretion
• Whether a costs order should be made against a respondent in an ex parte application

IT IS ORDERED: 1. The Sheriff of the High Court or his lawful Deputy be and is hereby authorised and directed to attach any of the respondent's movable property at its official address at Shop Number 202, Joina City, Harare and to impound any of the respondent's airplanes situate in Zimbabwe in order to confirm and/or found the jurisdiction of the High Court of Zimbabwe, and this order shall be his warrant to do so; 2. The Sheriff of the High Court or his lawful Deputy be and is hereby ordered to keep the property attached pursuant to this order so attached until the action which the applicants intend to institute is finalized; 3. Respondent shall be liable for the Sheriff of the High Court or his lawful Deputy's costs of storage of the property attached by the Sheriff's office pursuant to this order as well as any other costs arising from the said attachment; 4. Respondent to pay costs. [Note: The respondent noted an appeal to the Supreme Court under case no. SC 803/18]

For an order of attachment of property to found or confirm jurisdiction against a peregrine defendant under section 15 of the High Court Act to be granted, the applicant must establish a prima facie case in relation to the intended claim, as the remedy is exceptional and deprives the defendant of possession and use of property. The court's power to grant attachment is discretionary and must be exercised judiciously, taking into account: (a) whether a prima facie case has been established; (b) whether the property to be attached is within the court's jurisdiction; (c) whether the size of the claim justifies the attachment; (d) the balance between protecting the court's process from becoming ineffectual and avoiding undue prejudice to the defendant; and (e) the availability of post-attachment remedies for the defendant (application for discharge or variation, or offering alternative security). An ex parte application for attachment may be appropriate where there is risk the defendant may defeat the application by removing property from the jurisdiction. Jurisdiction may be founded where the contract giving rise to the claim was concluded within the jurisdiction, even if some harmful effects were felt elsewhere.

The court made two significant obiter observations: (1) The costs order against the respondent in the ex parte application was not justified as it breached the audi alteram partem rule - the correct order should have been costs in the cause in the main action, though the court could not vary it being functus officio. This observation provides guidance for future ex parte attachment applications. (2) The court expressed the view that it would be desirable to impose a time bar within which the main action should be commenced after an attachment order is granted, as the attachment is punitive in nature and affects fundamental freedoms before any finding on liability. The court suggested that applicants might be required to attach a draft of the process intended to be issued against the defendant. While section 15 of the High Court Act appears permissive rather than directory on this point, the court considered it desirable practice to prevent indefinite attachment where an applicant delays in prosecuting the main claim.

This case is significant in Zimbabwean civil procedure law as it demonstrates the application of the remedy of attachment of property to found or confirm jurisdiction against a peregrine (foreign) defendant under section 15 of the High Court Act. It clarifies the requirements for such applications, particularly: (1) the need to establish a prima facie case for the intended claim; (2) the exceptional nature of the remedy and the need for judicial discretion to be exercised judiciously; (3) the balancing of interests between securing jurisdiction and avoiding prejudice to the defendant; and (4) the availability of post-attachment remedies for defendants to apply for discharge or offer alternative security. The case also addresses procedural issues regarding ex parte applications in attachment matters and raises important questions about the appropriateness of costs orders in ex parte proceedings and the desirability of imposing time limits for instituting the main action after attachment is granted. The case is also significant in the context of aviation law and potential liability of airlines for breach of contract of carriage and delictual liability for treatment of passengers.