Tamira Overseas S.A. v Oliver Masomera N.O. and Others

Tamira Overseas S.A. (applicant) was a major creditor of Aquarium Trading (Pvt) Ltd (2nd respondent), which was under judicial management with Oliver Masomera (1st respondent) as judicial manager. Applicant filed two applications: HC 595/17 seeking removal of 2nd respondent from judicial management and its placement under provisional liquidation on grounds of insolvency (owing over USD 1.7 million), and HC 1868/17 seeking removal of 1st respondent as judicial manager on grounds that he was never properly appointed, failed to furnish security, failed to exercise duties properly, and acted with bias. In April 2018, while awaiting determination of those applications, applicant filed HC 3631/18 seeking an urgent anti-dissipation interdict to prevent 1st respondent from depleting 2nd respondent's assets. The court granted the provisional interdict. Respondents noted an appeal (SC 390/18) against the interdict without seeking leave. Applicant then filed this urgent application for leave to execute the interdict pending the appeal.

• Whether the applicant's representative had proper authority to represent the company without a board resolution
• Whether leave was required to sue a company under judicial management
• Whether the application was urgent
• Whether leave to appeal was required for an interim interdict order
• Whether leave to execute pending appeal should be granted
• What are the requirements for leave to execute pending appeal

The interim order in HC 3631/18 remains in full force and effect pending determination of Case Number SC 390/18. The respondents, jointly and severally, the one paying and the others to be absolved, shall pay the costs of suit.

A provisional anti-dissipation interdict granted pending determination of substantive applications is an interlocutory order that requires leave to appeal under s43(2) of the High Court Act. Such an order is designed to temporarily preserve the status quo and is not final in nature. In applications for leave to execute pending appeal, the court must consider: (1) possibility of irreparable harm to appellant if leave granted; (2) possibility of irreparable harm to applicant if leave denied; (3) balance of hardship or convenience; and (4) prospects of success on appeal. Where an appeal is noted without the required leave of the court, there are poor prospects of success on appeal. A power of attorney constitutes sufficient authorization for a representative to depose to affidavits on behalf of a company in litigation.

The court observed that while the right to appeal is important, it is not absolute as suggested by respondents, as the law prescribes limitations on that right. The court noted that respondents' failure to make submissions on prospects of success and harm they would suffer supported the suspicion that the appeal was filed merely to circumvent the interdict and allow continued dissipation of assets. The court commented that it would have been unreasonable to expect the anti-dissipation order to enumerate all specific activities that increase financial obligations, as such activities are not finite and depend on circumstances. The court also observed that urgency is never simply a matter of time lapse but must be assessed in the circumstances of each case.

This case is significant in Zimbabwean company law and civil procedure for clarifying that: (1) provisional anti-dissipation interdicts are interlocutory in nature and require leave to appeal under s43(2) of the High Court Act, following Mine Mills Trading; (2) it reinforces the test for leave to execute pending appeal from Net One Cellular, particularly the importance of prospects of success on appeal; (3) it demonstrates judicial willingness to protect creditors' interests where judicial managers may be acting improperly; (4) it clarifies that power of attorney can constitute proper authorization for company representation in litigation; and (5) it provides guidance on when urgency is established in the context of appeals that circumvent protective orders. The judgment emphasizes substance over form in procedural matters and protection of creditors in insolvency situations.