BINDURA UNIVERSITY OF SCIENCE EDUCATION v TETRAD INVESTMENT BANK LTD & ANOR

HIGH COURT, HARARE

[Opposed Application HH 319-17]

November 30, 2016 and May 24, 2017

ZHOU J

Company law – Judicial management – Company under judicial management – Writ of execution against property of such company – Requirement that writs against company are stayed and may not be proceeded with without leave of court – Extent of court’s discretion to grant leave – Companies Act
[Chapter 24:03] – Section 301.

Applicant, as the plaintiff, was granted a judgment against the first respondent, which was the defendant, by this Court. Respondent sought a stay of execution of the judgment on an urgent basis. The matter was removed from the roll on the basis that it was not urgent. An appeal to the Supreme Court against the order removing the urgent application from the roll was struck off the roll. Applicant caused a writ of execution to be issued in order to recover the judgment debt.

Held, that the discretion reposed in the court in respect of execution of a writ against a company which is under judicial management must, like in every case where the court has a discretion, be exercised judicially upon a consideration of the relevant factors and circumstances.

Held, further, the court would not readily accede to a request for leave to execute against a company under judicial management where such execution would destroy the company and prejudice all other creditors.

Held, further, the court must equally be sensitive to the reality that the interests of the applicant are also relevant and must be protected.

Cases cited:

Irvin and Johnson Ltd v Oelofse Fisheries Ltd; Oelofse v Irvin and Johnson Ltd and Another 1954 (1) SA 231 (E), referred to

Jere v Chitsunge 2003 (1) ZLR 116 (H), referred to

Le Roux Hotel Management (Pty) Ltd and Another v E Rand (Pty) Ltd
(FBC Fidelity Bank Ltd (Under Curatorship) Intervening)
2001 (2)
SA 727 (C), referred to

Millman NO v Swartland Huis Meubileerders (Edms) Bpk: Repfin Acceptances Ltd Intervening 1972 (1) SA 741 (C), referred to

Mupini v Makoni 1993 (1) ZLR 80 (S), referred to

Pellow NO and Others v Zondagh and Others (41/02) [2002] ZANWHC 24 (unreported), referred to

Samuel Osborn (SA) Ltd v United Stone Crushing Co (Pty) Ltd
(Under Judicial Management) 
1938 WLD 229, referred to

Silverman v Doornhoek Mines Ltd; Smith v Doornhoek Mines Ltd 1935 TPD 349, referred to

Western Bank Ltd v Laurie Fossati Construction (Pty) Ltd (Under Judicial Management); Western Bank Ltd v Laurie Fossati Plant Hire (Pty) Ltd (Under Judicial Management) 1974 (4) SA 607 (E), referred to

ZFC Ltd v KM Financial Solutions (Pvt) Ltd & Anor 2015 (1) ZLR 63 (H), referred to

Legislation considered:

Bindura University of Science Education Act [Chapter 25:22], ss 3, 4 (1)

Companies Act [Chapter 24:03], ss 299, 300, 301 (1)

Books cited:

Chadwick N, Volpe PL and Tett M Zimbabwe Company Law (2nd edn, Academic Books, Harare, 1986)

Cilliers HS, Benade ML, Henning JJ, de Plessis JJ, Delport, PA and de Koker L Cilliers and Benade Corporate Law (3rd edn, Butterworths, Durban, 2000)

Pretorius JT (General Editor), Delport PA, Havenga M and
Vermaas M Hahlo’s South African company law through the cases: a source book (6th edn, Juta & Co, Cape Town, 1999)

Visser C (General Editor), Pretorius JT, Sharrock R and
Van Jaarsveld M Gibson’s Mercantile & Company Law in South Africa (8th edn, Juta & Co Ltd, Cape Town, 2004)

I Ndudzo, for the applicant

T Magwaliba, for the first respondent

No appearance for the second respondent

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