Tenke Fungurume Mining SA v Bruno Enterprises t/a Transport Spares & Accessories [Under Judicial Management]

The applicant was a company registered and operating in the Democratic Republic of Congo (DRC) (a peregrinus). The respondent was a Zimbabwean company (an incola) operating a transnational trucking business. In August 2010, two of the respondent's trucks were hired by a third party to collect goods from the applicant's mine in DRC. While loading, trouble erupted at the mine and the respondent's trucks were burnt. The respondent blamed the applicant, alleging the culprits were the applicant's workers on strike. In December 2014, the respondent filed an ex parte application for attachment of the applicant's property (90 tonnes of copper or 5 containers of general goods) ad fundandam jurisdictionem. On 17 December 2014, Mafusire J granted the order in chambers. The Sheriff seized the property on 14 January 2015 and stored it at Karoi. On 29 January 2015, the applicant applied for rescission of the attachment order under Order 49 Rule 449, claiming the order was granted in error.

• Whether it was wrong for the respondent to proceed ex parte in the application for attachment ad fundandam jurisdictionem
• Whether the respondent failed to make full disclosure of material facts in the ex parte application
• Whether the respondent established a prima facie case for the attachment
• Whether the applicant had a bona fide defence to the intended claim (including on grounds of prescription)
• Whether leave for edictal citation was required before the attachment order could be granted
• Whether the attachment order should be set aside due to prejudice to the applicant

The application for rescission of the attachment order was dismissed with costs.

1. Applications for arrest or attachment ad fundandam jurisdictionem may properly be made ex parte where the defendant is peregrinus and the applicant reasonably believes there is a likelihood of perverse conduct if notice were given (in accordance with Rule 242(1)(c)). 2. In ex parte applications for attachment, the applicant need only establish a prima facie cause of action - evidence which, if accepted, will disclose a cause of action. The court is not required to decide the matter on a balance of probabilities at this stage. 3. Attachment of property to found jurisdiction must precede edictal citation; it is not necessary to obtain leave for edictal citation before seeking the attachment order. 4. A defendant whose property has been attached may obtain release by giving security, but has no right to unconditional release of the attached property merely on grounds of financial prejudice.

The court made several observations: (1) That the requirement to show prima facie cause of action is satisfied when there is evidence which, if accepted, will disclose a cause of action, and the mere fact that evidence is contradicted does not disentitle the applicant to the remedy, even when probabilities are against him; (2) That it is only when it is quite clear that the applicant has no cause of action or cannot succeed that an attachment should be refused or discharged; (3) That in terms of s 20 of the Prescription Act, no court shall of its own motion take notice of prescription; (4) The court noted that attachment serves a dual purpose - founding jurisdiction and providing security for potential judgment. The court also observed that the applicant's reference to not having been in default was 'unnecessary clutter' and that there was 'evident clutter' and the application was 'manifestly ill-conceived.' The judgment includes extensive citations to South African authorities (HERBSTEIN AND VAN WINSEN) on civil procedure, reinforcing the common law foundations of these procedural remedies.

This case clarifies important principles regarding attachment ad fundandam jurisdictionem in Zimbabwean law, particularly: (1) the permissibility and appropriateness of ex parte applications for attachment where the defendant is peregrinus and there is a reasonable apprehension of perverse conduct; (2) the standard of proof required at the ex parte stage (prima facie case rather than balance of probabilities); (3) the procedural sequence that attachment to found jurisdiction must precede edictal citation; and (4) the availability of security as a remedy for a defendant suffering prejudice from attachment. The judgment provides useful guidance on the application of Rule 242(1)(c) regarding ex parte applications and reinforces the common law principles governing attachment to found jurisdiction.