CHIRONGOMA v TDG LOGISTICS & ANOR 2011 (1) ZLR 98 (H)

Flynote

Practice and procedure — attachment — to found or confirm jurisdiction — attachment a pre-condition to issue of process against foreign defendant — leave of court required

Headnote

The plaintiff, an incola of Zimbabwe issued summons against the first defendant, a South African company, and the second defendant, its South African insurer, claiming the replacement of its motor vehicle and a trailer damaged as a result of a collision with the first defendant's haulage truck in 2007. He also claimed certain damages which arose as a result of the same accident. At the time the summons was issued the plaintiff had not obtained a court order for attachment of the first defendant's property to confirm or found jurisdiction against the defendants. About a month and a half after the summons was issued, the plaintiff filed an application seeking an order for attachment of property to found jurisdiction and exactly two months after the summons had been issued the order of attachment of property was granted. The order authorised the Deputy Sheriff to impound any of the first defendant's vehicles crossing the border into Zimbabwe or already in Zimbabwe in order to found jurisdiction. This the Deputy Sheriff duly did; the impounded vehicle was released when the first defendant paid a deposit of money to confirm jurisdiction. Thereafter the first defendant excepted to the summons and declaration as being null and void, in that the summons was issued and sent for service against the first defendant before the plaintiff had obtained an order of attachment to found or confirm jurisdiction. It also averred that the attachment order did not validate the summons and declaration as the granting of the attachment order was a condition precedent to the issue of process; and that the order was invalid because as it ordered the attachment of the first defendant's property which was not within the jurisdiction of the courts of Zimbabwe at the time that the order was granted.

Held, that in terms of s 15 of the High Court Act [Chapter 7:06], the plaintiff had the burden of having to satisfy the court, before the issue of process, that the peregrinus was present within Zimbabwe for arrest or has property within the country capable of attachment. At the time the summons was issued, neither the first defendant nor its property was located in Zimbabwe. In addition, no authority or permission had been obtained from the court to issue the process. The argument that the word "court" included the Registrar and that, by issuing the process, the registrar had permitted and directed its issue without an order for attachment could not be accepted. The attachment order has been issued in error, as the court's permission had not been obtained for the summons to be issued. Permission could not be granted in retrospect: attachment or the existence of the defendant or his property within Zimbabwe was a condition precedent to the issue of process. The attachment order was a nullity and no legal rights flowed from it.