Judgment No. HB 75/13
Case No. HC 2220/12
X REF HC 2789/12 & 2790/12
MASTER OF THE HIGH COURT
ZIMBABWE TEXTLIE WORKERS UNION
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 27 FEBRUARY & 9 MAY 2013
F. Chimwamurombe for 1st applicant
C. Dube-Banda for 3rd respondent
Opposed Court Application
KAMOCHA J: On 8 December 2011 an order was granted by this court placing Merlin (Private) Limited under provisional management. Cecil Madondo of Tudor House Consultants (Private) Limited was appointed the provisional judicial manager of Merlin (Private) Limited with powers and duties set out in section 303 of the Companies Act [Chapter 24:03].
On 4 July 2012 Maydeep Investments (Pvt) Ltd sought and was granted a provisional order whose interim relief interdicted Cecil Madondo from being confirmed as the judicial manager of Merlin (Pvt) Ltd.
In its opposition to the appointment of Cecil Madondo as the final judicial manager Maydeep Investments inter alia said this:-
“Without casting aspersions on the probity and standing of the 1st respondent it is a regrettable but undeniable fact that the 1st respondent is being investigated on allegations of dishonesty in an estate of the late Mr Njozi the 1st respondent was administering.
A judicial manager’s conduct, like that of Caesar’s wife, must be beyond reproach or suspicion.
There may well be no substance to allegations made against the 1st respondent but it would be best that he be cleared of the allegations first, before he can assume functions of judicial manager.”
The above allegations were palpably false. When Cecil Madondo refuted them in the opposing affidavit Maydeep Investments did not file a replying affidavit to the contrary. It is therefore taken as having accepted that what Cecil Madondo said was the true position. Similarly it had been alleged by Maydeep Investments that Cecil Madondo had contravened the provisions of section 302 of the Companies Act by canvassing for his appointment. That allegation also turned out to be false. Needless to say when Cecil Madondo refuted it, it was not persisted with.
To sum up on this issue, Maydeep Investments approached the court seeking a provisional order on the basis of false allegations. When Cecil Madondo pointed out that the allegations were false Maydeep Investments failed to respond.
Not only did it fail to file a replying affidavit it also failed to set the matter down for a hearing because it was content with the provisional relief granted to it.
Further Maydeep Investments was unable to file its heads of argument timeously. The first respondent served his heads of argument on the applicant on 5 September 2012 while Zimbabwe Textile Workers Union served its heads of argument on 1 October 2012. But the applicant only attempted to do so a day before the hearing of the matter without condonation. It was barred.
In the result this court then proceeded to deal with the matter on merits and discharged the provisional order granted to the applicant under case number HC 2220/12 with costs on an attorney and client scale.
Messrs Majoko & Majoko applicant’s legal practitioners
Dazinger & Partners 1st respondent’s legal practitioners
Dube-Banda, Nzarayapenga & Partners, 3rd respondent’s legal practitioners