Toyin Trailers (Pty) Ltd v Gelcole Logistics (Pvt) Ltd and The Sheriff for Zimbabwe, Harare N.O

The first respondent (Gelcole Logistics) filed an ex parte chamber application for attachment of property to found jurisdiction against the applicant (Toyin Trailers (Pty) Ltd) on 12 August 2022 in case HC 5340/22. The ex parte application was granted in default on 13 September 2022. The order was initially made against "Toyin Traders (Private) Limited" but was corrected on 19 October 2022 to read "Toyin Trailers (Pty) Limited". The applicant is a South African incorporated company. The applicant subsequently sought an urgent stay of execution of the judgment pending an application for rescission of the default judgment under case HC 7083/22. However, the applicant admitted in its own papers that it did not own the attached trucks, which actually belonged to another entity, Toyin Trailers Mozambique. Execution had already taken place on 8 October 2022.

• Whether the applicant had locus standi (cause of action) to approach the court given that it admitted not owning the attached property
• Whether the relief sought for stay of execution was competent where execution had already taken place
• Whether an ex parte application to attach property to found jurisdiction against a peregrinus (foreign) defendant was procedurally proper under Rule 60(3)(c) of the High Court Rules, 2021
• Whether the applicant, as a peregrinus party, was required to pay security for costs

The application was dismissed with costs against the applicant.

A party has no locus standi to seek relief in respect of property it admits it does not own, where no authorization has been shown from the actual owner and where the actual owner can vindicate its own rights (such as through interpleader proceedings). Furthermore, an application for stay of execution is incompetent where execution has already taken place. Ex parte applications to attach property to found jurisdiction against peregrinus (foreign) defendants are permissible under Rule 60(3)(c) of the High Court Rules, 2021 where there is reasonable belief the defendant would abscond from court proceedings. A peregrinus applicant must pay security for costs to protect incola parties.

The court observed that the applicant mentioned a tanker carrying oil that was leaking or dripping to demonstrate urgency, but this claim was undermined by the applicant's own admission that the tanker did not belong to it. The court also noted that the application could have failed on the locus standi point alone, indicating that this was a fundamental defect in the application. The court expressed the view that despite the defects being brought to the applicant's attention, it insisted on proceeding with the application, which influenced the costs order.

This case clarifies important principles in Zimbabwean civil procedure regarding: (1) the requirement for locus standi when a party seeks to vindicate rights in property it does not own and for which it has no authorization to act; (2) the competence of seeking a stay of execution after execution has already taken place; (3) the procedural propriety of ex parte applications to attach property to found jurisdiction against foreign defendants under Rule 60(3)(c) of the High Court Rules, 2021; and (4) the requirement for foreign (peregrinus) litigants to provide security for costs. The case serves as a reminder that parties must have a genuine legal interest in the subject matter of proceedings and cannot litigate on behalf of third parties without proper authorization.