BANTERBURY ESTATE (PRIVATE) LIMITED v CBZ AGRO-YIELD (PRIVATE) LIMITED and Another (376 of 2025) [2025] ZWHHC 376 (27 June 2025)

3 HH 376 - 25 HCH 2254/25 BANTERBURY ESTATE (PRIVATE) LIMITED versus CBZ AGRO-YIELD (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE HIGH COURT OF ZIMBABWE **DUBE-BANDA J** HARARE 12 June 2025 & 27 June 2025 _**Urgent court application**_ _R. Zimudzi_ for the applicant _M. Ngwenya_ for the 1st respondent DUBE-BANDA J: 1. This is an urgent court application for stay of execution. At a case management I ruled that the matter was urgent and gave directions and a calendar of events to be followed until the completion of the application. 2. The applicant seeks an order couched in the following terms: 1. The application be and is hereby granted. 2. Execution of the judgment granted by this Honourable Court (sic) case number HCH 3993/24 be and is hereby stayed pending the determination of the application for rescission of default judgment filed by the applicant under case number HCH 2239/25. 3. The costs of this application shall be costs in the cause. 3. The execution is sought to be stayed pending finalization of an application for rescission of judgment in HCH 2239/25. The application is opposed by the first respondent, and the second respondent has taken a neutral position, preferring to abide by the decision of the court. _**Background facts**_ 4. The brief background of this matter is that on 18 June 2024 the first respondent in HCH 270/24 obtained a judgment against one Tasimba Ashley Nyabonda (“judgment debtor”) in the sum of USD$ 133, 192, 82 and collection commission. On 19 July 2024 the first respondent, as the judgment creditor, caused to be issued writ of execution targeting the movable goods of the judgment debtor, and on 31 July 2024 the Sheriff attached certain goods at Pindi Park Road, Newheuse Estate Banket. According to the Inventory, the attached goods comprised the following: Honda 2L 1258 Motor Bike; Suzuki 125 Motor Bike; Electric Compressor Blue; PGM Macina Planter; White Renult 7 Tone; Sprayer Blue; Renault Dismantled Tractor Orange; 4 wheeled White Trailer; Orange Disc Harrow; Orange Cultivator and Trainer Junior Sprayer. The removal date was set for 6 August 2024. 5. Prior to the removal of the goods, the applicant submitted an affidavit to the Sheriff claiming ownership of the attached goods. The deponent to the affidavit is one Wilson Tendai Nyabonda, a director of the applicant. It was alleged that the judgment debtor is the son of the applicant’s directors. It was alleged further that the applicant owned Newheuse Estate, Pindi Park, Banket the immovable where the goods were located and attached. The deponent claimed that the PGM Macina Planter was his personal property, and that the following goods were owned by the applicant: Honda 2L 1258 Motor Bike; Suzuki 125 Motor Bike; Electric Compressor Blue; PGM Macina Planter; White Renult 7 Tone; Sprayer Blue; Renault Dismantled Tractor Orange; 4 wheeled White Trailer; Orange Disc Harrow; Orange Cultivator and Trainer Junior Sprayer. The applicant further claimed the Blue Kuhn Ranger 3000 Boom Sprayer which it said was placed under attachment. However, this item does not appear in the Inventory. 6. In answer to the affidavit submitted to it, the Sheriff instituted interpleader proceedings in HCH 3992/24. In the proceedings the Sheriff listed the goods claimed by the applicant as a Honda 2L 1258 Motor Bike; Suzuki 125 Motor Bike; White Renult 7 Tone; Renault Dismantled Tractor Orange; Orange Disc Harrow; Orange Cultivator and Trainer Junior Sprayer. The Sheriff excluded from the Interpleader Notice the following goods: PGM Macina Planter; Electric Compressor Blue; 4 wheeled White Trailer and the Blue Kuhn Ranger 3000 Boom Sprayer. 7. The interpleader application was set down for 9 May 2025, and it turned out that the applicant, as the Claimant had filed defective papers which the court could not recognize, the notice of opposition was then expunged from the record and in default it’s claim was dismissed. In the order the court listed the following goods, being Honda 2L 1258 Motor Bike; Suzuki 125 Motor Bike; White Renult 7 Tone; Renault Dismantled Tractor Orange; Orange Disc Harrow; Orange Cultivator and Trainer Junior Sprayer executable. The applicant filed an application for rescission of judgment and this application is seeking a stay pending the determination of the rescission. 8. In the opposing affidavit, the first respondent took several points _in limine, viz_ the certificate of urgency is fatally defective; the application is not urgent; the applicant has dirty hands; there is no valid application for stay of execution; the applicant has no legal basis for the application and the relief sought; and that the application for rescission has no legal basis. I now turn to deal with these points _in limine._ _**Points**_ __**in limine**__ 9. At the commencement of the hearing, Mr _Ngwenya_ counsel for the first respondent abandoned several points _in limine_ and persisted with the two _viz_ that the applicant has dirty hands and that it is a non-existent entity. _**Whether the applicant is a non-existent entity**_ 10. The respondent argued that the applicant is a non-existent entity in that there is no registered company answering the name Banterbury (Private) Limited. It was submitted that in terms of s 303(9) of the Companies and Other Business Entities Act [_Chapter 24:03_] a company must within a period of twelve months from the effective date re-register under this Act. In terms of 309(12) of the Act, the sanction of failure to re-register is a striking off from the register of companies. The first respondent submitted that the applicant failed to re-register as required by the law and is thus a non-existent company and cannot do business. 11. _Per contra,_ for the applicant it was submitted that the applicant is a registered company in terms of the law. Before the hearing, the applicant placed on record a Certificate of Re-registration. The certificate was issued by the Companies Office, and the date of re-registration is given as 15 April 2025. 12. Section 12(2) of the Civil Evidence Act [_Chapter 8:01_] provides that a copy or extract from a public document shall be admissible and shall be _prima facie_ proof of the facts stated therein. The respondent did not put in issue the authenticity of the certificate, and I accept it as proof of the facts stated therein. The certificate of re-registration was issued on 15 April 2025, and this application was filed on 15 May 2025. Therefore, at the time of filing this application, and the application for recission of judgment on which this application is predicted, the applicant had re-registered. In addition, the contention by the first respondent that in the reading of s 303(9) of the Act the applicant did not register within a period of twelve months, and therefore in terms of s 309(12) it was struck off from the register of companies and the subsequent registration was inconsequential is not of concern to this court at this moment. The respondent cannot, in the face of the re-registration certificate, use these proceedings to challenge the existence of the applicant. In other words, this court cannot make a finding that the certificate of re-registration is invalid in the absence of a substantive application in which the Companies Office is a party. In the circumstances, the point _in limine_ that the applicant is a non-existent entity has no merit and is refused. _**Whether applicant has dirty hands**_ 13. The respondent contends that the applicant has dirty hands and ought not to be heard by this court. This submission is premised on the averment in the founding affidavit which seems to suggest that, notwithstanding the judicial attachment, the applicant is using the attached goods for its operations. In its founding affidavit, the applicant avers that “these are goods which the applicant has lawfully owned and relied upon, which form part of its ongoing business or operational infrastructure, and which, if removed, completely interrupt or incapacitate its normal course of operations.” In its answering affidavit, the applicant denies that it is using the attached goods in its operations. The applicant submitted further that the doctrine of dirty hands has no application in this case in that it applies only where a litigant has acted in willful disobedience of a court order or is in ongoing contempt of court. It was submitted that no court order has been violated, no directive, interdict, or writ has been disregarded. 14. It is trite that as soon as the inventory has been drawn up by the Sheriff, the goods specified in it are deemed to be judicially attached. Pending the removal of the goods, neither the judgment debtor nor any person may use, let or lend the goods or do anything which will decrease their value. In essence, once goods are judicially attached, they are under the court's protection and cannot be used by the debtor or any other person before their removal by the Sheriff. Interfering with attached goods in whatever manner amounts to a violation of a court order on which the attachment is predicated. 15. In _casu_ , the issue is whether there is cogent evidence that the applicant is interfering or using the attached goods. The submission that the applicant is interfering with attached goods is premised on the averment in the founding affidavit as quoted above. A closer scrutiny of the applicant’s averment shows that it does not constitute cogent evidence of use of the attached goods. The most that one can get from this averment is only an inference that the attached goods are being used. To deny a litigant its constitutional right to be heard requires cogent and satisfactory evidence, and there is none in this case. In addition, the applicant’s averment can be interpreted as an attempt to emphasise the importance of the attached goods in its business operations, not that they are currently being used. I therefore, find that there is no evidence that the applicant is using the attached goods for its operations. It is for these reasons that this point _in limine_ cannot succeed. 16. As a result, I find that the points _in limine_ taken by the first respondent have no merit and are accordingly refused. _**The Merits**_ 17. This is an application for stay of execution, and what is considered in such an application has been set out in several cases. It is trite that execution of a judgment is a process of the court, and the court has an inherent power to manage its process. The court has a discretion whether to grant the relief of a stay of execution. Mathonsi Ja made the point in _Desmond Humbe_ v _Muchina & 4 Others_ SC 81/21 as follows: “The execution of a judgment is a process of the court. The court therefore retains an inherent power to manage that process having regard to the applicable rules of procedure. What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court’s judgment has been stated in a number of cases.” 18. In _Mupini_ v _Makoni_ 1993 (1) ZLR 80 (S) it was held that a court has a wide discretion in deciding whether to stay execution and in doing so will consider whether real and substantial justice so demands. The court in _Vengai Rushwaya_ v _Nelson Bvungo_ _& Another_ HMA 19/17 held that an application for stay of execution is a species of an interdict. As such an applicant must _inter alia_ show an apprehension of an irreparable harm, a balance of convenience favouring the granting of the interdict and the absence of any other satisfactory remedy. 19. The applicant seeks an order staying the execution of the order in HCH 3993/24, the order sought to be stayed reads in part as follows: “The Claimant’s claim to the _following property_ which appears on the Notice of Seizure and Attachment dated 31 July 2024 which was placed under attachment in execution of the order in HCH 270/24 be and is hereby dismissed;- Honda 2L 125S Motor Bike; Suzuki 125 Motor Bike; White Renault 7-ton truck; Orange Renault dismantled tractor; Orange disc harrow; Orange cultivator and Trainer junior sprayer.” 20. It is the above listed goods that were declared executable. In the event this application succeeds, these are only the goods whose execution may be stayed pending the rescission of judgment. The sale in execution of the following goods, i.e. _PGM Macina Planter; Electric Compressor Blue; 4 wheeled White Trailer and the Blue Kuhn Ranger 3000 Boom Sprayer_ are not in the order that is sought to be rescinded and therefore cannot be stayed pending the rescission application. In other words, the only goods properly subject to this application are those in the order sought to be rescinded and no more. 21. The goods that are in the order sought to be rescinded are these:_Honda 2L 125S Motor Bike; Suzuki 125 Motor Bikes; White Renault 7-ton truck; Orange Renault dismantled tractor; Orange Disc Harrow; Orange Cultivator; and Trainer Junior Sprayer._ The deed of transfer shows that the immovable property from which the goods were attached is the property of the applicant. It is trite that in situations where the goods are attached in the possession of the claimant, there is a presumption that they belong to the claimant. In those circumstances, the execution creditor has the _onus_ to prove otherwise. See [__Welli-Well (Pvt) Ltd v Imbayago And Another__ _(Civil Appeal SC 85 of 2020; SC 8 of 2021) [2021] ZWSC 8 (9 March 2021)_](https://zimlii.org/akn/zw/judgment/zwsc/2021/8/eng@2021-03-09). In _casu,_ the presumption is that the attached goods, in the order sought to be rescinded belong to the claimant. In addition, the applicant is in the farming business, and the attached goods constitute farming equipment, and they are listed financial reports prepared prior to the commencement of this dispute. Therefore, on the merits the application for rescission of judgment has prospects of success. 22. The issue whether the applicant was in wilful default will be thoroughly considered in the application for recission of judgment, for the purposes of this application the applicant must show that it has prospects of success in the rescission. On 26 September 2024 the applicant filed a notice of opposition in HCH 3992/24, and at the hearing of the matter on 9 May 2025 the notice of opposition was found to be invalid. The first respondent contends that the applicant knew for a period of eight months preceding the hearing that the notice of opposition was invalid but did not take corrective measures. This submission might be persuasive to a casual observer but cannot withstand closer scrutiny. I say so because the decision whether the notice opposition is valid or otherwise is a judicial function. This decision was made on 9 May 2025, and the application for rescission of judgment was filed on 14 May 2025. For the purposes of this application, I take the view that regarding the issue of wilful default, the applicant has prospects of success in the main matter. 23. The applicant has made a case for the court to exercise its discretion in favour of granting a stay of execution. I say so because the applicant has demonstrated that the application for rescission has prospects of success. If the goods subject to the application for rescission are sold in execution, and the rescission succeeds, it will amount to a hollow victory. Therefore, real and substantial justice demands that a stay be granted. This application succeeds only in respect of those goods listed in the order sought to be rescinded. 24. The question of costs remains to be considered. Good grounds exist for a departure from the general rule that costs follow the event. It is the applicant that filed an invalid notice of opposition in HCH 3993/24, resulting in the order that is sought to be rescinded. It is the applicant which is seeking a stay of execution. Notwithstanding its success in this matter, it is not entitled to costs. A no cost order will meet the justice of this case. In the result, I order as follows: 1. The execution of the goods listed in the order in HCH 3993/24 being: _a Honda 2L 125S Motor Bike; Suzuki 125 Motor Bike; White Renault 7 tonne truck; Orange Renault dismantled tractor; Orange dis harrow; Orange cultivator and Trainer junior sprayer_ be and is hereby stayed pending the finalisation of the application for rescission of judgment in HCH 2239/25. 2. There is no order as to costs. **Dube – Banda J** : ……………………………………….. _Zimudzi and Associates,_ applicant’s legal practitioners _Chimuka Mafunga Commercial Lawyers_ , 1st respondent’s legal practitioners