WILLIAMS v KATSANDE & ANOR 2010 (2) ZLR 266 (H)

Flynote

Practice and procedure - application - interim relief - such relief having the effect of a final order - dismissal of application

Practice and procedure - application - urgent - certificate of urgency - who may sign such certificate - certificate not fatally defective if signed by party's legal practitioner - need to ensure that urgency of application is reflected in the relief sought

Practice and procedure - parties - company - proceedings against company - no basis for citing directors and shareholders thereof in the absence of good reason

Headnote

In the absence of any ground to pierce the corporate veil, there is no proper basis to cite a person as party to court proceedings against a duly registered company simply on the basis that such person is a director and shareholder of that company

While it may be improper and undesirable for a certificate of urgency to be signed by a legal practitioner on behalf of a client, in terms of r 242(2) of the High Court Rules, 1971 when such legal practitioner is a member of the law firm representing the client, that impropriety would not, on its own, make the certificate of urgency fatally defective.

In terms of an agreement entered into between the applicant and the second respondent, the latter agreed to sell on commission certain household goods and effects on behalf of the former. To this end, the second respondent took possession of such goods for the purpose of sale to the public. In July 2010, however, the applicant, in writing, cancelled the agreement, which cancellation was confirmed by the second respondent the following day. The second respondent sought to remain in possession of the goods until the applicant had paid it certain monies which it alleged was due. In subsequent correspondence, however, the second respondent did agree to surrender all the applicant's goods on 31 August 2010. On 13 August 2010, the applicant visited the second respondent's shop to conduct a stocktake but was denied access. As a result thereof the applicant brought on urgent application on the next working day, alleging that it had become "clear to the applicant that he (stood) to suffer irreparable loss because his property was no longer accessible to him and he had no knowledge of its whereabouts". In seeking interim relief, however, he sought an order compelling the second respondent to hand over forthwith all his property, as well as an accounting of property sold. By way of final relief he sought a declarator that the property was his. The point which concerned the court was whether the relief reflected in applicant's draft order, could properly be said to be urgent.

Held, that as far as the surrender of the goods was concerned, there was no urgency. It had already been agreed between the parties before 13 August 2010 that this would take place on 31 August 2010.

Held, further, that the declarator which was sought by the applicant was unnecessary. At no time was the ownership of the goods in issue.

Held, further, that the real issue as to urgency in the matter related to the denial of access to the applicant to conduct a stocktake on 13 August 2010, but the interim relief sought did not address this aspect of the matter at all.

Held, further, that, for the foregoing reasons, the application must be dismissed. In any event, were the court to grant interim relief, it would have the effect of a final order. This in itself would be a further reason for dismissing the application.