The
applicant seeks a provisional order in the following terms-
“Terms
of final order sought
That
the first and second respondents should show cause to this honourable court why
a final order should not be made on the following terms:
(a)
That the first respondent be and is hereby permanently interdicted from chasing
away the applicant company as the sole constructor at Stand Number 327 BT 4th
Avenue and Fife Street, Bulawayo, [pending a proper termination of the oral
agreement].
(b)
That the first respondent pays the costs of this application on an
attorney-client scale.
Interim
relief granted
That
pending the confirmation or discharge of this order, this order shall operate
as an [sic] temporary order having the effect of:
(a)
Directing the first respondent to reinstate the applicant company as the sole
constructing company at Stand Number 327 BT 4th Avenue and Fife Street,
Bulawayo.
(b)
Barring the second respondent from carrying out any construction work for the
first respondent at Stand Number 327 BT 4th Avenue and Fife Street, Bulawayo.
(c)
In the event of first respondent failing to comply with this order, the first
respondent be and is hereby declared to be in contempt of court.”
The
first respondent raised several points in limine. I propose to deal with them
in turn.
I
will start with the issue of urgency.
It
is trite law that the extension of protection under a certificate of urgency is
relief available from this court as a matter of discretion – Dilwin Invstms
(Pvt) Ltd t/a Farmscaff v Jopa Eng Co (Pvt) Ltd HH116-98 and General Transport
& Engineering P/L & Ors v ZIMBANK Corp P/L 1998 (2) ZLR 301 (H). In the
circumstances, I will exercise my discretion in determining whether this
application is indeed urgent.
The
applicant seeks an interlocutory interdict under a certificate of urgency. The
interdictory remedy has meant different things at different times in its
history. But, I have to once more emphasize that from the earliest times it
manifested itself as an extraordinary remedy; The Law and Practice of Interdicts
(1993) by C.B. PREST…,. In short, it is an unusual, extraordinary and
discretionary remedy – Natham v Hoffenburg Bros & Lunz 1919 EDL 184…, and
Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton & Anor 1973 (3) SA
685 (A…,.
In
other words, it is not available to a litigant who is possessed of an
alternative ordinary remedy – Setlogelo v Setlogelo 1914 AD.
The
following statement of the requirements by CORBETT J…, is representative of
what has become the almost standard formulation of the requirements -
“Briefly,
these requirements are that the applicant for such temporary relief must show -
(a)
That the right which is the subject matter of the main action and which he
seeks to protect by means of interim relief is clear or if not clear, is prima
facie established, though open to some doubt;
(b)
That, if the right is only prima facie established, there is a well-grounded
apprehension of irreparable harm to the applicant if the interim relief is not
granted and he ultimately succeeds in establishing his right;
(c)
That the balance of convenience favours the granting of interim relief; and
(d)
That the applicant has no other satisfactory remedy.”
Mabhodho
Irrigation Group v Kadye & Ors HB08-03; L R Boshoff Investments (Pty) Ltd v
Cape Town Municipality 1969 (2) SA 256 (C)…,.
This
remedy does not fall within the mould of ordinary judicial remedies. Unfortunately,
this remedy is abused and litigants are willy-nilly approaching these courts
under certificates of urgency under Rule 223 of the High Court Rules, 1971.
GILLESPIE
J in General Transport & Engineering P/L & Ors v ZIMBANK Corp P/L 1998
(2) ZLR 301 (H) rightly held that the preferential treatment of allowing a
matter to be dealt with urgently is only extended if good cause is shown for
treating the litigant in question from most litigants. Legal practitioners
issuing certificates of urgency under Rule 223A must not do so where they do
not genuinely consider the matter as urgent. In casu, in his scant certificate
of urgency all the legal practitioner states is the following –
“First
respondent's conduct is unlawful and wrongful in that is has caused or has a
potential to cause applicant huge financial loss. There are workers that need
to be paid salaries. In the circumstances, the applicant is bound to suffer
irreparable harm should the unlawful and wrongful conduct of the first
respondent remain in force.”
This
shows that the legal practitioner granted the certificate without having regard
to the above-mentioned requirements of an interdict. In this case, the
applicant can sue the first respondent for damages arising from the alleged
breach of the verbal agreement...,. More importantly, the founding affidavit
does not state why the application is being instituted under a certificate of
urgency. All that is averred in the founding affidavit is the following –
“The
applicant submits that the actions of the first respondent are unlawful and
have caused the applicant financial loss…,. The 1st respondent owes the
applicant USD22,000= outstanding from construction work already done and if applicants
are prevented from working they stand to lose this amount…,.”
As
alluded to above, the applicant is possessed of an ordinary remedy for damages
ex contractu. It is not clear why he chose the route of urgent application. For
this reason alone I find that this application is not urgent.
For this reason alone, and without considering
the other points raised in limine and the merits of the case, I dismiss the
application with costs.
