Court dismisses DW application

judicial manager Mr Winseley Militala regarding the status of his role at the textile firm.
The application had been sought because the Master of the High Court, Mr Charles Nyatanga, had alleged that a provisional judicial management order of DW had lapsed after it was not heard on the return date of March 2 this year.
Mr Militala, through his lawyer Mr Gerald Mlotshwa of Mlotshwa & Company, had argued that a provisional judicial management order remained in full force and effect until such time as an express order of the High Court discharges it.
In his judgment, Justice Musakwa argued that Mr Militala lacked locus standi to institute the proceedings in his official capacity, as he had not provided security.
Mr Militala had secured a US$12 million bond from Allied Insurance but was withdrawn after the insurer cited the dispute between shareholders and the judicial management.
Although Justice Musakwa ruled against
Mr Militala’s application, he indicated that
even if no order was made, the matter could still be properly enrolled either for discharge or confirmation of the December 2010 provisional order.
“While noting that the provisional judicial management order had not been discharged in terms of the Companies Act, Justice Musakwa ruled nonetheless that Mr Militala could not institute legal proceedings on behalf of the David Whitehead companies because he did not have a bond of security.
“We respectfully differ with this latter aspect of the Judge’s conclusion and the basis for dismissing the application on a point of law. We are therefore appealing on this aspect,” said Mr Mlotshwa
“Happily however, and notwithstanding, it is clear to us, at least, that until the provisional judicial management order of December 1, 2010 has been dismissed by an express order of the High Court of Zimbabwe it remains in full force and effect.”
He said Justice Musakwa could not have made a finding to the effect that Mr Militala required a bond of security in terms of the High Court Order if that order had in fact lapsed and was of no force and effect as previously alleged.
“It is therefore totally incorrect for any person to state that the companies are out of provisional judicial management.
“It is also improper for any person to institute any legal action against the companies at the present moment without seeking leave from the High Court in respect of such action,” he said.
He added the companies remain under provisional judicial management and Mr Militala remains the provisional judicial manager thereof until such time as both are discharged by an express order of the High Court of Zimbabwe.
“Anyone suggesting otherwise is simply seeking to confuse a relatively straightforward matter,” said Mr Mlotshwa.
Meanwhile, lawyers representing Elgate, the major shareholders in DW, yesterday wrote to Mr Mlotshwa demanding a formal handover of the company by Mr Militala.