Tembo v PCJ Motorways (HC 8846 of 2016; HH 224 of 2017) [2017] ZWHHC 224 (3 April 2017)

1 HH 224-17 HC 8846/16 MEMORY TEMBO versus PCJ MOTORWAYS HIGH COURT OF ZIMBABWE DUBE J HARARE, 2 March 2017 & 3 April 2017 OPPOSED MATTER M C Mazanhi, for the applicant T S Chinopfukutwa, for the respondent DUBE J: The applicant brings an application to attach a peregrine respondent’s property to found jurisdiction. The factual background to this matter is as follows. The respondent is said to be a peregrine company based and registered in Botswana and involved in the transport business. On 6 April 2014, the applicant was a passenger in the respondent’s bus, registration number B 563 ASC travelling from Botswana to Zimbabwe. The bus was involved in a road traffic accident at the 338 km peg along the Harare–Bulawayo road, Zimbabwe when the driver of the bus lost control of the bus. The applicant sustained injuries as a result of the accident amounting to $677 759.00. The applicant avers that the accident was caused by the respondent’s driver in that he was over speeding, dozing off whilst driving, did not keep proper control of the vehicle and failed to avoid the accident when it was imminent. The applicant avers that the respondent has failed and refused to compensate her for damages she sustained. The respondent has known assets in Zimbabwe, being its buses which frequent the country on daily routes to and from Botswana. The applicant seeks an order placing the respondent’s buses under judicial attachment. She submitted that the law requires that where a litigant seeks to sue a peregrinus, the respondent’s known assets require to be placed under judicial attachment and remain within the jurisdiction of the court until the resolution of the dispute between the parties. She wants HH 224-17 HC 8846/16 buses with a value of USD68 000.00 kept within the jurisdiction of the court on attachment by the Sheriff to enable her to file summons against the respondent for the recovery of the damages sustained in the accident. The respondent took up two points in limine. The first point related to the propriety of the application was not pursued. The second point is related to the citation of the respondent. The respondent submitted that it is improperly cited as its registered name is PCJ Motor and Accessories (Pty) Ltd as reflected on its certificate of incorporation. The respondent does not trade as PCJ Motorways in Botswana. It submitted that the Zimbabwean Company which is registered as PCJ Motorways (Pvt) Ltd is the one that trades as PCJ Motorways. It is a different legal persona from the Botswana registered company. There is no allegation that the respondent trades as PCJ Motorways in Botswana. It contended that the improper citation renders the application fatally defective. In response, the applicant argued that the respondent is flip flopping. It submitted that the respondent initially raised a special plea under HC 10955 /14 an action between the parties on the same subject matter, citing that the respondent is a company registered in Botswana resulting in the court at PTC in those proceedings directing that this application be made. This revelation led the respondent to withdraw the point. On the merits, the respondent submitted that the court has no jurisdiction over the respondent, a company registered and operating its business in Botswana. The applicant must follow the respondent and sue it there. The respondent submitted further that the applicant has no cause of action against it as it has not placed facts which show that the respondent is vicariously liable for the actions and conduct of the driver. Further that the claim is premature as the applicant has not made a claim against the respondent’s insurer. Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa 5th ed at p 94 define an attachment of property to found or confirm jurisdiction as follows: “An attachment to found or confirm jurisdiction is an attachment, in South Africa, of the property of a peregrinus (a person who is domiciled and resident in a foreign country) in order to make that person amenable to the jurisdiction of a South African Court.” BECK J in African Distillers v Zietkiewicz and Others 1980 ZLR 135 @ 136 F stated the following; “The well settled common law for which there is no dearth of judicial authority, is that for claims that sound in money brought by an in cola or a peregrinus against a peregrinus, there must be arrest of the person of the person of the defendant peregrinus or an attachment of his property HH 224-17 HC 8846/16 within the territorial jurisdiction of the court in order to found jurisdiction, or to confirm jurisdiction. In those cases where some other jurisdictional ground exists in relation to the claim – as for example, that it arises from a contract concluded or a delict committed within the court’s territorial limits of jurisdiction. Such arrests of attachments are necessary in order to satisfy albeit only partially and imperfectly in some cases, the doctrine of effectiveness, for the court will not concern itself with suits in which the resulting judgment will be no more than a brutum fulmen.” See also Tarwireyi v Kunene and Another HH 19-2008.” The practice of attaching a peregrinus’ property to found jurisdiction is a common law practice which originated in Holland in the 17th century and was developed to serve the interests of incolae and for commercial convenience, See Tsung v Industrial Development Corporation of South Africa [2006]SCA 27 (RSA). The practice allows an incola plaintiff to attach the property of a peregrinus defendant to make the person open to the incola’s jurisdiction The rationale behind an attachment is to ensure that the judgment the court may give against a peregrinus is effective and not rendered nugatory. Attachment enables a plaintiff to prosecute his claim and execute the judgment subsequently obtained in his own jurisdiction. An incola applicant seeking an order for attachment of property to found jurisdiction is required to show the following, a) that the cause of action arose in his jurisdiction b) that he has a cause of action against the respondent c) that the claim sounds in money. d) that property sought to be attached is within the jurisdiction and is capable of attachment. Once these requirements are satisfied, all that a plaintiff has to prove is a prima facie case against the defendant, See Simon NO v Air Operations of Europe AB and Others 1991(1) SA 217 (A). The court need not enquire into the merits of the case sought to be brought. It is desirable to bring this type of application exparte without affording the respondent an opportunity to defend the application. The respondent can defend the application on the return date. The basis for this approach is that a respondent may if alerted, decide to remove his property from the jurisdiction, torpedoing the application. The case of Clan Transport (Pvt) Ltd v Government of the Republic of Mozambique 1993 (3) SA 795 (ZH) , involved an applicant who had vehicles temporarily and from time to time within Zimbabwe in the form of vehicles travelling from Mozambique to various parts of Zimbabwe on respondent’s affairs. The court declined to order attachment of property on the basis that it was not certain that the respondent had any property in Zimbabwe which was capable of being attached. The court remarked as follows: HH 224-17 HC 8846/16 “It is clear from this paragraph that at any given time the respondent’s vehicles may or may not be in Zimbabwe. There are, therefore, times when the respondent does not have any property in Zimbabwe, which can be attached. In addition, the information given by the applicant is meager. The identity and value of the property which is sought to be attached are not given.” The property sought to be attached must be located in Zimbabwe and must be capable of attachment. See also Fairdrop (Pvt) Ltd v Capital Bank Corp Ltd and Ors HH 305 /14, Chirongoma v Tdg Logistics & Anor 2011 (1) ZLR 98 (H) 101H and 102A – B. The High Court has a discretion whether or not to grant an order to attach property to confirm jurisdiction conferred on it by s 15 of the High Court Act [Chapter 7:06]. Section 15 gives the court power in its discretion to permit or direct the issue of process for service in any case in which the court may exercise jurisdiction founded on or confirmed by the arrest of any person or the attachment of any property. This the court may do, without ordering any arrest of person or attachment of property if it is satisfied that the person required to be arrested and the property to be attached is within Zimbabwe and is capable of arrest and attachment. This simply means that the court has discretion over whether to order the arrest of a defendant or order attachment of his property to find or confirm jurisdiction. In Gwisai v Shamuyedova and Ors HH 623/15, the court dealt with the provisions of s 15 and held that the absence of a person who can be arrested or property which can be attached to found or confirm jurisdiction is a critical consideration in deciding whether the court has jurisdiction over a peregrine defendant and can issue process. Further that if there is no person to arrest or property to attach, the court would be unable to enforce its judgment and thereby, defeating the principle of effectiveness. The court remarked as follows; “Even though the second defendant’s trucks used to come to Zimbabwe, it may for the purpose of frustrating the plaintiff’s claim stop sending its trucks to Zimbabwe or through Zimbabwe. The court would then not be able to enforce its judgment if it finds that the second defendant is liable and should pay the plaintiff’s claim. I therefore find that the plaintiff’s reason for believing that this court has jurisdiction is not supported by the provisions of s 15”. The basis of this claim is the delict allegedly committed by the respondent’s driver within the court’s jurisdiction. The pleadings in the main matter which are attached to this application show that the respondent is being jointly sued with its driver on the basis of vicarious liability. This fact is especially and specifically pleaded. The founding affidavit in the main matter is clear that the bus was being driven by an employee of the respondent who had an accident in the course and scope of his employment, thereby establishing a cause of action. HH 224-17 HC 8846/16 The applicant expressed difficulties with regards the identification of the insurer of the respondent having failed to obtain authentic details of the insurance company. There is no law that hinders a claim as against an insured because the insurer has not been cited. The liability of the insurer is defined in terms of the insurance policy if any and can be established. The claim against the insured can in the absence of the insurer, be limited to amounts claimable against it. The applicant has brought this application simply to bring the respondent within the jurisdiction of the court. Whether applicant should proceed first against the insurer is not the concern of the court presently. Attachment of vehicles that travel in and out of a jurisdiction poses problems. Before a court issues an order for attachment to found jurisdiction, it must be satisfied that the property sought to be attached is within the jurisdiction and capable of attachment. The difficulty with attaching vehicles that frequent a jurisdiction and are temporarily in and out of the country is that one is never certain of their whereabouts. For a court to grant an order for attachment to found jurisdiction it must be satisfied that there is property which is capable of attachment at any one time. The property must be firmly located in this jurisdiction. This case is on all fours with the Clan case. The applicant states in her founding affidavit as follows: “The respondent is a peregrinus, the only known assets of the respondent within the jurisdiction of this court are its buses which frequent the country on their daily routes to and from Botswana.” The respondent has buses that travel in and out of the country. The buses frequent the country, It is not certain that the respondent has any buses in Zimbabwe capable of attachment at any one time. The buses are not permanently located here. They cannot be said to be firmly located in Zimbabwe. The statement suggests that there are times when these buses are not available in Zimbabwe. This court is alive to the possibility that the respondent may withdraw its buses from Zimbabwe resulting in any judgment that the applicant may obtain in its favour being rendered useless, thereby defeating the principle of effectiveness. The buses have not been positively identified. I see no wisdom in granting an order that may not be capable of enforcement. I have in the exercise of my discretion decided to decline the request of the applicant. HH 224-17 HC 8846/16 I must express my displeasure at the conduct of the respondent. The respondent misled the court as well as the applicant that it is registered as PCJ Motorways in Botswana resulting in the application bring this application against this respondent. Litigation is not a game but a quest for justice. Litigants and their legal practitioners are expected to take proceedings seriously. Legal practitioners have a duty to the court to present correct and reliable information. This case raises serious ethical questions on the part of the legal practitioner concerned. He was not identified in court. His conduct deserves censure by the Law Society. The litigant can also not be spared. The respondent has not taken these proceedings seriously. Its approach to litigation is akin to that of a cow boy. The court has in the same process been abused and must show its disgust at its conduct by withholding an award of costs in its favour. It the result it is ordered as follows: 1. The application is dismissed 2. Each party is to bear its own costs. Legal Resources Foundation, applicant’s legal practitioners Kadzere Hungwe & Mandewere, respondent’s legal practitioners .