Sikhumbuzo Moyo, Senior Reporter
IN a dramatic turn of events, a High Court judge has ordered the Sheriff of the High Court to immediately pay back US$18 400 to the South African Scorpion Kings’ DJ duo of Kabza DeSmall and Maphorisa which the two had paid as security to avoid civil imprisonment.
Petros Kabelo Motha (DJ Kabza DeSmall) and Themba Sonnyboy Sekowe (DJ Maphorisa) were on Monday detained at a local hotel in Bulawayo for seven hours following a warrant of arrest issued against them for failing to perform at the Victoria Falls Carnival in April this year.
The warrant of arrest was issued after Victoria Falls Carnival (Private Limited), through their lawyers – Mr Thulani Nkala from Dube & Nkala Law Firm had filed an urgent Chamber Application on Saturday at the High Court seeking jurisdiction for the duo to be tried in Zimbabwe and a writ for personal attachment and committal to prison being issued the following day.
The Sheriff of the High Court then executed the order on Monday which resulted in the two respondents, being compelled to pay US$18 400 to the Sheriff, “so as to buy our freedom”.
Motha, through his lawyer, Mr Zibusiso Ncube of Ncube and Partners, filed an ex-parte urgent chamber application challenging the writ of execution.
In papers before the court, he cited Victoria Falls Carnival (Pvt) Ltd and Sheriff of the High Court as first and second respondents
In his founding affidavit, Motha argued that the writ of execution was in variance with the terms of the provisional order.
“It is ipso facto invalid and should be set aside. The second respondent (Sheriff of the High Court) went on to execute the writ (and) to avoid the gaols, the applicants were compelled to pay the US$18 400 to the second respondent,” he said.
“There is an urgent need for a declaratory order as the writ is bad at law. The matter is of extreme commercial urgency and cannot wait to be heard on an ordinary court application.”
In his judgement delivered on Tuesday, Justice Martin Makonese ordered the Victoria Falls Carnival (Pvt) Ltd to pay the costs of suit on an attorney and client scale.
“The writ of execution issued by the Registrar of this Honourable Court under case number HC 1804/22, is in variance with the interim relief granted in the provisional order and ipso facto declared invalid and therefore set aside,” ruled the judge.
Justice Makonese also ordered the Sheriff of the High Court to immediately pay back the applicants or their nominated agents the sum of US$18 40, which applicants had paid pursuant to the writ of execution in matter number HC 1804/22.
He also directed Victoria Falls Carnival to pay the legal incurred by the applicants.
In his signed founding affidavit, Motha said they flew into Zimbabwe on Sunday for a show at Queens Sports Club at the instance of Fife Street Events. After the show, they went back to their rooms at the Holiday Inn hotel.
The following day, at around 8am, they were advised by the event organisers that the second respondent was at the hotel to serve them with a court order and writ of execution which turned out that the process was in fact related to a show they failed to attend.
“Our legal practitioners engaged with the first respondent’s legal practitioners drawing his attention to maladies on the draft order and the writ of execution. The first respondent suggested that a writ of execution may be amended. However, the process of amendment would not address the fact that the second respondent would not leave the hotel without handing us to the police officers that had camped at the hotel,” said Motha.
“With no consensus reached and the need to protect our liberty as well as catch the return flight, we capitulated into making a payment of US$18 400 to the sheriff. The payment was made on a strictly without prejudice basis to challenge the writ as we are now doing.”
Motha further states that at the Sheriff’s office, it was established that there was no compliance with paragraph (iii) of the interim relief granted in that the sheriff was not shown the receipt of payment of US$3 000.
“I make reference to this point as I intended to demonstrate that this whole suit has been actuated by malice. Nowhere on the court order is there mention of payment of US$18 395,81 particularly on the interim relief granted by this court. Strangely and inexplicably, the writ of execution introduces a clause suggesting that we provide security in the sum of US$18 395. 81,” he said.
Under case number 1804/22 in which Victoria Falls Carnival (Pvt) Ltd had made the application, Motha and Sekowe were cited as first and second respondents respectively.
In that case, Justice Dube-Banda had stated that the warrant of arrest would not be issued and executed until such time that the applicant had paid to the registrar of the High Court.
Article Source: The Chronicle