Court name
Supreme Court of Zimbabwe
Case number
SC 32 of 2007
Civil Appeal 12 of 2005

Nument Security (Pvt) Ltd v Mutoti and Others (12/05) (SC 32 of 2007, Civil Appeal 12 of 2005) [2007] ZWSC 32 (04 November 2007);

Law report citations
Media neutral citation
[2007] ZWSC 32




REPORTABLE ZLR (29)












Judgment No. SC 32/07



Civil Appeal No. 12/05








NUMENT
SECURITY (PVT) LTD v (1) SIMON MUTOTI (2)
ANTONY MUPFUNDE (3)  RINOFLAVINO GWEREMWOZHE

(4) ABEL GOCHE (5) FLIT ON ENTERPRISES t/a
KNIGHT SECURITY








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU CJ, CHEDA
JA & MALABA JA


HARARE, JULY 10, 2006 &
NOVEMBER 5, 2007









P Machaya, for the appellants


N Zwidzayi, for
the respondents









CHEDA JA: The history of this matter, which is common cause, is
that a company known as Python Investments (Pvt) Ltd (“Python”)
which was in the security business, using the name Knight Security,
ran into financial problems.





The proprietor of the
company wanted to close down and leave the country, but was unable to
pay the company’s work force their
benefits and gratuities.





The company decided
to offer all the employees the company as a going concern. The
employees accepted the offer in full and final
settlement as set off
against their claims and the agreement was put in writing.





Part of the agreement
provided as follows:



“AND WHEREAS the company and the employees have agreed that in full
and final settlement of a dispute concerning possible terminal
benefits, annuities, retrenchment gratuities, pay in lieu of leave
and the like and in full and final settlement of any claim each
employee might have against the company, that the company in lieu of
such claim does donate, hand over and grant to the employees
who
shall form a syndicate, the trade name, goodwill, current customers
contracts, and assets as per the attached schedule as upon
the
following terms and conditions.”









The agreement was
signed on 27 May 2002.






Persuant to the above
agreement, two companies were formed. They were Flit-On Enterprises
(Pvt) Ltd (“Flit-On”) and Nument
Security (Pvt) Ltd (”Nument”)





According to
Musiiwa’s affidavit, when Flit-On was formed he was appointed as
one of the Directors.





He says Flit-On is
the company that took over the goodwill, trade name, contracts and
assets of Python. Its Directorship and shareholding
was made up of
the former employees of Python. It traded under the name Knight
Security Services. He says Nument Security (Pvt)
Ltd was
incorporated with Mutoti, Mupfende, Gweremhezhe Goche and Moyo as its
directors.





Nument also went on
to trade under the style of Knight Security Services, the trade name
used by Flit On.





According to him,
this company has no authority to do so and infringes on the rights of
Flit On. It is for that reason that Flit
On wants Nument to be
interdicted, restrained and barred from using the premises, assets,
manpower and any bank account in the name
Knight Security Services.





On the other hand,
the opposing affidavit of Simon Mutoti, the Chairman of the Board of
Directors of the appellant, says the former
employees of Python set
up a committee to negotiate the take over of Python.





He says the committee
then proceeded to form and register Flit-On Enterprises (Pvt) Ltd on
their own and without the mandate of
the other employees.





A serious dispute
emerged following which the workers formed their own company called
Intensive Security (Pvt) Ltd.





The disputes resulted
in the workers engaging in legal suits at the Magistrates Court where
an order by consent was issued.





Part of the consent
order provided that all the cases the parties filed at the
Magistrates Court be withdrawn, and that an Ad Hoc
Committee be
formed with a specific mandate spelt out in writing, to replace the
Management and Task Force Committees.





It should be noted
here, that the effect of the Consent Order leaves out completely the
existence of the companies concerned.





It seems this is the
reason why the employees found themselves torn between two companies,
that is, Flit-On Enterprises (Pvt) Limited
and Nument Security (Pvt)
Limited, both claiming to have taken over the assets, contracts and
premises of Python Investments (Pvt)
Ltd and decided to go to the
High Court to have the dispute settled.





The High Court found
that the dispute was “riddled with irreconcilable material disputes
of facts”.





There were two rival
companies and each claimed to be the authentic and legitimate
successor to Python.





The High Court
concluded, on the basis of papers, as follows:-



“On the papers it is clear that Flit-On Enterprises (Pvt) Ltd
trading as Knight Security was the product of the joint will of the
former employees of Python Investments in terms of the above
agreement.






Nument Security (Pvt) Limited is a product of disgruntled employees
who seek to break away from the original company by forming a
rival
company to take over the functions and assets of the original
company.”







On the basis of this conclusion, the High Court granted a final order
interdicting, restraining and barring Nument Security (Pvt)
Ltd from
trading under the style of Knight Security Services and ordering it
to pay the costs.





This order by the High
Court, does not seem to have taken into account the interest of those
employees who were on the side of Nument
Security Services.





Once the court a quo
made the finding, that there were irrevocable despites of facts it
should have been guided by the numerous authorities on interdicts,
starting from Setlogelo v Setlogelo 1914 AD 221 which laid
down the principles applicable to interdicts.





This case was followed
by several judgments which laid down the requirements for the
granting of an interdict as:




  1. a right, which though prima facie established, may be open
    to some doubt;



  2. a well grounded apprehension of irreparable injury;



  3. the absence of any ordinary remedy.







See (1) United
Technical Equipment Co v Johannesburg City Council
1987 (4) SA
343; (2) Welcom Bottling Co. (Pvt) Ltd en’n Ander v Belfast
Minerals Waters
(DFS) (Pvt) Ltd 1967 (3) SA
45, where a rule nisi was discharged because the applicant had
not established a clear right; and (3) Cresto Machines (EDMS) BPK
v Die Afdeling Speur- Offisier, S.A. Polisie, Noord Transvaal
1972(1)
SA 376, where it was again held that:



“As the appellant had not proved in all the circumstances that it
had a clear right not to be disturbed in its ownership or possession
of the machines, that the appeal should be dismissed with costs.”







See also Phillips Electrical (Pvt) Ltd v Rufaro
Gwanzura
HH 374-88 (HC 1757/88), where it was held that:



“Since there was a material dispute of fact, petitioner had not
made out ‘a clear right’ to an ….interdict.”






When parties first
appeared in this Court, the matter was postponed as it was reported
that they wanted to negotiate a settlement.
Mr Zvidzai, for
the respondents, conceded that the interdict was wrong as it gave a
right to one party without hearing evidence. That concession
was
properly made.





Each side was
claiming that their company is the legitimate successor to Python.





There is an
allegation that the workers who formed Flit-On made themselves the
Directors without the mandate of the other workers.





If this is one of the
irreconcilable material disputes of fact, then the Court should have
heard evidence to determine what the
correct position was before
granting a final interdict.





It was therefore,
unsafe to resolve the matter on the papers without establishing a
clear right on the part of the respondents.





For that reason I
make the following order –




  1. The order of the court a quo in case No. HC 955/05 is set
    aside.



  2. The matter is referred to trial before a different Judge.



  3. Costs be reserved for determination at the trial.

















CHIDYAUSIKU CJ: I agree.














MALABA JA: I
agree.
















Mtombeni & Associates, appellant’s legal practitioners


Chinyama &
Associates
, respondents’ legal practitioners