Lister Magoche v City of Bulawayo Commercial Entities t/a Ingwebu Breweries and Kuppkraft (Private) Limited

The applicant and 2nd respondent had a verbal arrangement regarding their participation in a contract with the 1st respondent. A dispute arose between the applicant and 2nd respondent concerning payment of funds from the 1st respondent under what is referred to as the 'conipaks agreement'. The applicant alleged that her title deeds were used as collateral/security for 2nd respondent's contractual obligations with 1st respondent, including the conipaks agreement, and that she was entitled to a share of the proceeds. The 2nd respondent denied that the applicant was party to the conipaks agreement and asserted there was no privity of contract. The applicant averred that the 2nd respondent was financially unstable, its directors had a tendency to rapidly dissipate funds, and it owned no attachable assets. The applicant had pending litigation in HCBC 567/25 against the 2nd respondent concerning their contractual rights. She feared that if funds held by 1st respondent were paid to 2nd respondent, they would be dissipated and any judgment in her favour would be rendered worthless (brutum fulmen).

• Whether the applicant established a prima facie right to interim relief preserving the disputed funds
• Whether there were reasonable grounds to fear that funds would be dissipated if paid to 2nd respondent
• Whether the balance of convenience favoured granting an interdict to preserve the funds pending resolution of the main dispute
• Whether the absence of privity of contract between applicant and 1st respondent defeated the application for interim relief

The court ordered that 1st respondent suspend all payments to 2nd respondent pending resolution of HCBC 567/25, thereby preserving the disputed funds. The application was granted with costs at a higher scale.

Where there are triable issues between parties regarding entitlement to disputed funds, and there is evidence of financial instability and risk of dissipation of assets by one party, a court may grant an interim order preserving those funds pending resolution of the substantive dispute. The applicant must establish: (a) a prima facie right, even if challenged and open to doubt; (b) reasonable grounds to fear harm (in this case, dissipation of funds); (c) no alternative remedy; and (d) that the balance of convenience favours granting the interdict. Arguments about privity of contract and substantive entitlement are matters for determination in the main proceedings and do not defeat an application for interim preservation where genuine triable issues exist and there is risk that a final judgment may be rendered worthless if assets are dissipated.

The court observed that the 2nd respondent's counsel's arguments in the urgent application amounted to leading evidence and attempting to argue the merits of the case in HCBC 567/25, which was not appropriate in the urgent application for interim relief. The court noted it was common cause that the parties had some contractual background between themselves and the 1st respondent, but that the extent of rights and entitlements could only be discerned upon finalization of the main matter. The court emphasized that it found no prejudice in both parties waiting for their day in court with the funds preserved.

This case is significant in Zimbabwean jurisprudence as it demonstrates the court's willingness to grant interim relief to preserve assets pending determination of substantive disputes, even where the applicant's right to those assets is disputed and uncertain. The judgment emphasizes that courts will intervene to prevent judgments from becoming brutum fulmen (worthless) where there is evidence of financial instability and risk of dissipation of assets. The case also clarifies that arguments about privity of contract and substantive entitlement are matters for the main hearing and do not automatically defeat applications for interim preservation orders where there are genuine triable issues. The judgment reinforces the principle that preservation of the status quo pending litigation serves the interests of justice by ensuring that final judgments can be meaningfully enforced.