The Reserve Bank of Zimbabwe v Allied Bank Limited and Uniliver South East Africa Pension Fund and Messenger of Court, Harare

Allied Bank Limited (first respondent) was a registered commercial bank that surrendered its banking licence to the Reserve Bank of Zimbabwe (applicant) on 6 January 2015 due to capitalisation challenges. On 9 January 2015, the applicant petitioned for liquidation of the first respondent in HC 180/15 and issued a press statement advising the public. Prior to these events, Uniliver South East Africa Pension Fund (second respondent) had obtained an order against the first respondent in HC 27484/14. On 10 January 2015, after the press release and liquidation petition, the second respondent instructed the Messenger of Court (third respondent) to execute the order. On 12 January 2015, the Messenger of Court evicted the first respondent from its premises and attached movables. The applicant wrote to the third respondent on 12 January 2015 advising of the liquidation petition and the statutory stay provisions under sections 210 and 213 of the Companies Act. Despite this letter and telephonic communication, the Messenger of Court indicated he would only cease execution upon a court order, necessitating this urgent application.

• Whether the filing of a liquidation petition automatically stays execution proceedings against the company being wound up
• Whether the Messenger of Court was obliged to cease execution upon being notified of the liquidation petition by letter and telephone, or whether a court order was required
• Whether costs should be awarded against the Messenger of Court for continuing with execution despite being notified of the statutory stay provisions

The draft consent order was granted with costs against the third respondent (Messenger of Court).

The filing of a petition for liquidation under the Companies Act stays legal proceedings against the company being wound up. While a Messenger of Court is generally mandated to act only on court orders, where an Act of Parliament specifically precludes execution, the Messenger must exercise reasonable diligence upon being notified of such statutory prohibition. Where a Messenger of Court, after being properly notified of statutory stay provisions and being served with the relevant court application, continues to insist on proceeding with execution without a specific court order directing cessation, such conduct amounts to unreasonable behaviour warranting an adverse costs order.

The court made non-binding observations about the proper conduct expected of officers of the court when faced with competing obligations. The court noted approvingly that the general principle is that Messengers of Court cannot be expected to act on the say-so of parties, either verbally or in writing, citing Dlodlo v Deputy Sheriff Marondera 2011 (1) ZLR 416. However, the court emphasized that this general principle must yield to specific statutory provisions. The court also observed that it was surprising that the third respondent directed the applicant's legal practitioners to contact the second respondent's lawyers when those lawyers had already given instructions to the Messenger to release documents to the Reserve Bank officials.

This case clarifies the application of the automatic stay provisions under sections 210 and 213 of the Companies Act [Chapter 24:20] of Zimbabwe upon the filing of a liquidation petition. It establishes the duties and responsibilities of officers of the court (specifically Messengers of Court) when confronted with statutory provisions that override their mandate to execute court orders. The case demonstrates that while Messengers of Court generally act only on court orders, they must exercise reasonable diligence when informed of statutory provisions that stay execution, and failure to do so may result in costs orders against them. It also illustrates the Reserve Bank's supervisory role in protecting depositors and creditors during bank liquidation proceedings.