Gilad Shabtai v Ofer Bar and Others

The applicant claimed he had entered into a "sale deal" with the first and second respondents (husband and wife) whereby they would relinquish all their control, rights and interest in two trusts (Yoyo Family Trust and Shemoni Family Trust) to him for US$650,000. These trusts held the entire shareholding in Gelshen Enterprises (Pvt) Ltd, which owned a property known as the Hogerty Hill property. The applicant was to obtain immediate occupation of the Hogerty Hill property and had undertaken renovations worth US$300,000. The applicant alleged he had paid the consideration. New trust deeds were drawn up and signed by the applicant and first respondent, but the second respondent refused to sign. Behind the applicant's back, the respondents allegedly surreptitiously retrieved the title deed from conveyancers and mortgaged the Hogerty Hill property to a third party (Clinton) for US$850,000. The respondents used the money paid by the applicant to acquire a more upmarket property, the Kingsmead property, which was registered in the name of the third respondent (Trinirig Investments). The applicant feared the respondents were disposing of their assets and relocating to South Africa, which would render any judgment in the pending main action (HC10429/14) ineffective. The applicant sought an anti-dissipation interdict to prevent the respondents from dealing with the Kingsmead property.

• Whether the court has inherent jurisdiction to grant an anti-dissipation interdict
• Whether the applicant established the requisites for an interdict: (1) prima facie right; (2) well-grounded apprehension of irreparable harm; (3) balance of convenience; (4) no other satisfactory remedy
• Whether the application was urgent
• Whether the corporate veil of the third respondent should be pierced
• The admissibility of translated documents and hearsay evidence

The provisional order for an anti-dissipation interdict was granted in terms of the draft attached to the urgent chamber application. The first, second and third respondents were interdicted from disposing of, mortgaging, or otherwise dealing in any manner which diminishes their rights, title and/or value of the Kingsmead property pending determination of the main action.

The court has inherent jurisdiction to grant an anti-dissipation interdict, which is simply an ordinary interdict to preserve assets pending determination of a dispute. The requisites for such an interdict are: (1) a prima facie right, even if open to some doubt; (2) a well-grounded apprehension of irreparable harm; (3) balance of convenience favouring the interdict; and (4) no other satisfactory remedy. The corporate veil will be pierced where a company is a sham, a mere front or alter ego of natural persons, or where it would be flagrantly unjust to leave the veil intact. Justice requires that a restriction be placed on one's ability to deal with one's assets where it has been shown that one has been acting mala fide with the intention of rendering ineffective any judgment the court may grant. An anti-dissipation interdict is sui generis and is available to reinforce a claim for damages and render it more effective, not as a substitute for it.

The court observed that shrewd estate planning to minimize taxes is acceptable, but the particular transaction of "selling" one's trusteeship in a trust was novel and the cause of action might be a "joke" - though this would be for the trial court to determine. The court noted that the parties were members of the close-knit Israeli community in Zimbabwe and had initially hoped to resolve the dispute through dialogue. The court also discussed the admissibility of translated documents under section 17 of the Civil Evidence Act and first-hand hearsay evidence under section 27, though ultimately placed no weight on the disputed WhatsApp message. The court expressed suspicion that both the application and main action "concealed more than they revealed" but found this did not prevent establishment of a prima facie right at the interim stage.

This case provides important guidance on anti-dissipation interdicts in Zimbabwean law. It confirms the court's inherent jurisdiction to grant such relief and clarifies that "anti-dissipation interdict" is not a special type of relief but merely a descriptive term for an ordinary interdict aimed at preserving assets. The judgment demonstrates the court's willingness to pierce the corporate veil where companies and trusts are used as alter egos to shield beneficial ownership and frustrate legitimate claims. The case also illustrates the court's approach to preventing abuse where a respondent acts mala fide to render potential judgments ineffective by disposing of or encumbering assets. It emphasizes that justice requires restricting a party's ability to deal with assets where they have acted with intention to defeat creditors, even where such asset structuring is not per se unlawful.