CENTRAL AFRICAN BUILDING CONSTRUCTION
COMPANY (PVT) LTD
HIGH COURT OF ZIMBABWE
HARARE, 22 July 2011
Urgent Chamber Application
T. Machiridze, for the applicant
E. Jori, for the respondents
MUTEMA J: In November, 2004, the respondents as owners of the applicant sold the assets and goodwill of applicant to Construction Resources Africa, a company duly represented by Danny Musukuma. There were various terms and conditions pertaining to the sale of the assets and the goodwill as well as the directorship and the shareholding of the applicant company. In 2006 a dispute arose regarding the sale agreement. This led to the respondents to purportedly cancel the sale and instituted vindicatory proceedings in case number HC 109/07. The trial in that case has since gone through and judgment was reserved by my sister Judge GOWORA.
In that matter the directorship of Danny Musukuma and the entire shareholding of the applicant are some of the items that were referred to trial.
On 20 June 2011, the respondents caused an advertisement to be flighted in the Herald newspaper in this vein:
“RE: CENTRAL AFRICAN BUILDING AND CONSTRACTION (sic) COMPANY (PRIVATE) LIMITED
TAKE NOTICE that it has come to our notice that Danny Musukuma is holding himself out as a director and authorised person of the above company. The entitlement of Dannny Musukuma to represent the company is the subject of a pending High Court action in case number HC 109/07. The trial has been completed and judgment of the High Court is awaited. All persons dealing with DANNY MUSUKUMA in connection with the company are advised accordingly.”
This advertisement was apparently prompted by a notice in the Herald of 10 June 2011
to the effect that Astra Steel and Engineering Supplies P/L had obtained judgment against the applicant in case number HC 9351/10 and a sale in execution of some attached assets would be conducted by the Deputy Sheriff on 17 June, 2011.
The applicant, represented by Danny Musukuma then filed this urgent chamber application whose interim relief seeks to interdict respondents from flighting advertisements in the press pertaining to the directorship and shareholding structure of applicant, to order respondents to retract in the same manner, space and prominence, their advertisement which they flighted in the Herald on 20 June 2011 within 5 days of the grant of the order.
The respondents opposed the application. The nub of the complaint by applicant was that because of the advertisement, applicant runs the risk of losing some construction tenders which it had won and no entity would want to do business with applicant. The respondents’ argument was that the advertisement was not only factual but in the public interest.
In Econet (Pvt) Ltd vs Minister of Information, Posts and Telecommunications 1997 (I) ZLR 347 it was held that for the grant of a temporary or interim interdict, the requisites are that –
the right sought to be protected is clear; or
(a) if not clear, it is prima facie established, even though open to doubt , and
(b) there is a well-grounded apprehension of irreparable harm if the relief sought is not granted and the applicant ultimately succeeds in establishing his right;
the balance of convenience favours the grant of the relief; and
there be no other satisfactory remedy.
Even where the requisites are established, the court has a discretion whether to grant or refuse the remedy. In the instant case, I have not been persuaded that the right sought to be protected is clear or that it is prima facie established. The fact of the matter is that the contents of the advertisement complained of are factual. There is nothing defamatory about the advertisement. The trial in HC 109/07 was a public trial and any member of the public could have attended it. By the very nature of the dispute between the parties in the reserved judgment, on discovering that applicant would continue incurring liabilities or continue getting contracts binding the applicant company the respondents owe it to the public to inform it of the factual position so that no one will cry foul that they were never warned in the event of any possible suits that might emanate from the outcome of the reserved judgment. The fact that applicant had some assets attached by Astra Steel which assets form part of the lot forming the subject of the cancelled sale agreement naturally had respondents worried and felt obliged to protect their right in the event that they win the case. It is the respondents who seem to enjoy a prima facie right rather than the applicant.
While there may be an apprehension of harm on applicant’s part such harm is not irreparable. Only one piece of tangible evidence of possible harm was furnished by the applicant, viz annexure J – a letter from Apex Design Architect addressed to Danny Musukuma advising that ZIMRA will hold over the signing of the contract pending the outcome of the High Court case. In the event that applicant wins, then ZIMRA will sign the contract and consequently no harm, let alone irreparable harm, will have befallen the applicant.
The balance of convenience does not favour the grant of the relief since applicant cannot be entitled to a retraction of something that is factual. Also, it would be irresponsible if the public is not warned of the existence of case number HC 109/07. Over and above the foregoing, only one advertisement was flighted and no propensity to continue flighting the same has been proven and respondents have undertaken not to place any further such advertisements.
Regarding alternative satisfactory remedy, in the event of applicant losing any claimed business as a result of the advertisement complained of there exists another satisfactory remedy of suing for damages and the quantum thereof is readily ascertainable.
In any event, the Court still has the residual discretion whether to grant or refuse the interim remedy and in casu, the facts do constrain me to eschew exercising the discretion in applicant’s favour.
Regarding costs, the point was made by first respondent that it would be inequitable for him to ask for costs against his applicant company but that costs be borne by Danny Musukuma in is personal capacity. I entirely agree with this submission though I have not been persuaded that such costs be on the higher scale.
In the event, the application be and is hereby dismissed with Danny Musukuma (in his personal capacity) bearing respondents’ costs.
Messrs Manase & Manase, applicant’s legal practitioners
Wintertons, respondents’ legal practitioners