MAWADZE
J. This matter was first placed before my brother MAFUSIRE J on 2 February 2017. The applicants successfully sought
his recusal and since we are only two judges at the station the matter landed
on my desk. I proceeded to set the matter down for hearing on 8 February 2017
but on that date I was advised that Counsel for all the respondents were not
available due to earlier commitments. I was compelled to reschedule the matter
for hearing on 15 February 2017.
The
applicants are farmers' associations which represent sugar cane farmers in
Chiredzi. The 1st respondent is the Minister of Industry and
Commerce whose Ministry oversees the sugar industry. The 2nd and 3rd
respondents are millers and also engage in sugar cane farming in the lowveld.
The applicants and the 2nd and 3rd respondents have a
commercial relationship in the production, milling and marketing of sugar. It
would appear that this relationship is plagued by problems.
The
applicants filed an urgent chamber application in which they seek an interdict
couched in the following terms;
“TERMS OF FINAL ORDER SOUGHT
(a) The
1st respondent's directive dated 28 November 2016 be and is hereby
set aside
(b) The
parties shall continue to implement DOP at the rate of 82.65 to 17.35 % until
the report by Ernest and Young is perfected and approved by all parties.
(c) 1st
respondent is ordered to pay costs.”
INTERIM RELIEF SOUGHT
The
respondents are interdicted from implementing the DOP at rate of 77% to 23%
until this application is heard.
SERVICE OF PROVISIONAL
ORDER
The
Deputy Sherriff or members of the Zimbabwe Republic Police are authorised to
serve the copies of the provisional order on the respondents.”
The
background giving rise to this application are more succinctly outlined in the
opposing affidavit by the 1st respondent one Michael C Bimha [the
Minister].
The
commercial dispute between the parties has been going on for some considerable
time. The applicants' members being sugar cane growers who do not have a mill
of their own take their sugar cane to the mill owned by the 2nd and
the 3rd respondents. The applicants' members are then paid by the 2nd
and 3rd respondents on the basis of what is called the division of
proceeds ratio (DOP).
In
1997 a review process of the DOP was carried out by Price Water House and it
pegged the DOP rate or ratio at 73.5% to 26.5% in favour of farmers since 1999.
The parties after sometime were involved in a dispute as regards the proper DOP
rate. The applicants were alleging that the DOP rate set out in 1999 was no
longer feasible. The parties were unable to agree on the DOP rate. This
prompted the Minister to intervene by issuing a directive in terms of Section
10 of the Sugar Production Control, Act [Cap
18:19] and set an interim DOP ratio of 82.65% to 17.35% in favour of the
farmers or applicants on 6 June 2014. This interim DOP rate was to subsist
pending a review of the DOP ratio by Chartered Accountants or consultants.
Ernest and Young (EY) were appointed as the consultants.
According
to the Minister (this has not been contested by the applicants) the parties
agreed then that;
(a) they
would respect and abide by the consultant's findings
(b) in
the event that the DOP ratio differed from the interim one the party to whom
compensation is due would be provided with prompt and automatic compensation.
It
is common cause that the review process was done by EY and completed in January
2016. As a result of that review the DOP ratio was pegged at 77% to 23% in
favour of the farmers or the applicants. This ratio is about 4% higher than the
1999 ratio. This recommendation did not unfortunately put the matter to rest.
The
parties still made representations to the Minister highlighting the possible
shortcomings of the report by EY. Some of those alleged shortcomings are
highlighted in the applicants' founding affidavit. The Minister apparently lent
his ear to these concerns and agreed that the review process should continue.
The Minister however directed that the DOP ratio of 77% to 23% in favour of the
applicants or farmers be implemented pending another review process which would
take on board the concerns raised by the parties. According to the Minister
this review process would take time and require resources hence the need to
find an interim DOP ratio.
It
is this directive by the Minister which has prompted the applicants to approach
this court on a certificate of urgency seeking interim relief in the form of an
interdict.
According
to the applicants the Minister's directive defies logic in the Wednesbury sense
and is irrational for a number of reasons which are;
(a) that
the Minister seeks to rely on a DOP ratio which he concedes is borne out of a
flawed report by EY.
(b) that
the interim DOP ratio of 77% to 23% in favour of the applicants would result in
applicants suffering irreparable harm which would mark the end of the sugar
cane farming by indigenous farmers thus reversing the gains of the land reform
programme
(c) that
the applicants would simply be financially ruined, swimming in debt and be
totally incapacitated.
It
is on this basis that the applicants contend that this matter is extremely
urgent as the applicants have no other remedy. The applicants contend that the
2nd and 3rd respondents would not suffer any prejudice if
interim relief is granted and that the balance of convenience is in favour of
granting interim relief.
Both
Mr Magadure for the Minister and Mr Moyo for the 2nd and 3rd
respondents have raised points in limine.
I allowed counsel for all the parties to make submissions both in respect of
points in limine and the merits of
the case out of expediency and convenience. I however indicated that in my
ruling I would first consider whether this matter is urgent and that I would
only deal with other points in limine
if I considered the matter to be urgent. Needless to say I would only consider
the merits of the matter if I find the points in limine to lack any merit.
The
respondents took the following points in
limine;
(a) that
this matter is not urgent
(b) that
the substance of this application is a review application which cannot be made
by a way of an urgent chamber application
(c) that
this application is flawed as it does not raise grounds for review
(d) that
the deponents to the applicants' founding affidavits have not shown that they
have authority to depose to those affidavits
(e) that
the certificate of urgency is fatally defective
I
would want to deal with the last point in
limine first simply because it determines whether there is a proper
application before me.
The
basis of the point in limine in
respect of the certificate of urgency is that Mr Frank Chirairo
certified this matter as urgent on 18 January 2017 when in fact the founding
affidavits by the applicants were commissioned on 19 January 2017. This would
mean that when Mr Chirairo certified the matter as urgent
there were no founding affidavits upon which this application is premised. This
point, in my view should not detain this court at all. I am inclined to give Mr Ndlovu for the applicants the benefit
of the doubt that this is simply a typographical error on the dates in issue. I
would however hasten to add that legal practitioners should take utmost care in
drafting pleadings especially in urgent matters. A lot of time is wasted in
some instances arguing or dealing with matters which simply are a result of
lack of proper or due diligence by legal practitioners concerned. My view is
that in view of Mr Ndlovu's
submissions it may well have been a typographical error on the certificate of
urgency and I am inclined to condone the error and deal with the matter. I now
move on to consider if this matter is urgent.
The
question of what constitutes urgency in matters of this nature is well settled
in our law. The locus classicus is
the case of Kuvarega, vs Registrar General & Anor. 1998 (1)
ZLR 188 at 193 F (H). See also Gifford
vs Mazarire & Ors. 2007 (2) ZLR
131 (H) at 134 (H) – 135 A.
In
the case of Bonface Denenga & Anor.
vs Ecobank (Pvt) Ltd. and 2 Ors.
HH 117/14 at page 4 of the cyclostyled judgment, I summed up the question of
urgency as follows;
“The general thread
which runs through all these cases is that a matter is urgent if,
(a)
It
cannot wait the observance of the normal procedural and time frames set by the
rules of the court in ordinary applications as to do so would render nugatory
the relief sought.
(b)
There
is no other alternative remedy.
(c)
The
applicant treated the matter as urgent by acting timeously and if there is a
delay to give good or sufficient reason for such a delay.
(d)
The
relief sought should be of an interim nature and proper at law.”
From
the back ground facts of this matter which are not in issue the commercial
dispute between the applicants and the 2nd and 3rd
respondents have been in existence for a very long time and various solutions
were proffered to resolve this dispute. What I find remarkable is that on 6
June 2014 the parties agreed to a road map on how this dispute should be
resolved. They agreed that a consultant be engaged to decide the DOP rate. By
then the DOP ratio was 73.5% to 26.5% in favour of the applicants or the
farmers. As an interim measure pending the review process the parties were
happy to accept a thumb stuck figure of 82.655 to 17.35% in favour of the
applicants by the Minister. What has not been disputed is that the parties made
an undertaking to abide by the findings made by the consultant and most
importantly to accept that if the DOP rate differed from the interim one the
prejudiced party would receive prompt and automatic compensation. The
applicants were aware of this road map and probabilities since June 2014. The
mind boggles why after the disputed report by EY the applicants want this court
to believe that this eventuality which they were well aware of and anticipated
as way back as June 2014 would be the basis to find urgency in this matter. In
my view urgency cannot be found on what was always in existence since June
2014. That would amount to self-created urgency.
The
other important point to note is that both the certificate of urgency and the
founding affidavits do not show how if this matter is not heard on an urgent
basis it would become a brutem fulmen
and the specific irreparable harm the applicants would suffer. This point was
hammered home by Makarau J.P. (as she
then was) in Document Support Centre (Pvt) Ltd. vs Mapuvire 2006 (2) ZLR 240 (H)
at 244 D when she said;
“In my view, urgent
applications are those where if the courts fail to act, the applicants may well
be within their rights to dismissively suggest to the court that it should not
bother to act subsequently as the position would have become irreversible and irreversibly
so to the prejudice of the applicant.”
Both
the certificate of urgency and the founding affidavit vaguely refer to
irreparable harm the applicants would suffer if the matter is not entertained
on an urgent basis. There are bald assertions that the interim DOP ratio
directed by the Minister based on some scientific assessment, albeit flawed
report, would signal an end to sugar cane farming by indigenous farmers as they
would be put in debt and be financially crippled. It is even said this is against
the land reform programme! The specific irreparable harm has not been
demonstrated or when the deductions are to commence and at what level or rate.
It
is for these reasons outlined above that I am of the firm view that this matter
is not urgent and it must as a consequence be struck off the roll of urgent
matters.
The
respondents prayed for a special order of costs on the basis that the
application for the recusal of my brother Mafusire J was made without prior
notice. I am not satisfied that the respondents have made a case for a special
order of costs and or for costs on a higher scale. It has not been disputed
that Mr Ndlovu only became aware that
this matter had been placed before my brother Mafusire J a day before the
hearing. While I am not privy to the facts why the recusal for my brother Mafusire
J was sought, my learned brother in his bountiful wisdom decided to recuse
himself. I find no basis for punitive costs. All I can do is to order the
applicants to pay the costs related to the abortive hearing before my brother Mafusire
J and also relevant to this hearing.
In
the result,
IT IS ORDERED THAT;
1. The
matter be and is hereby struck off the roll of urgent matters.
2. The
applicants shall pay the costs, inclusive of the hearing before Mafusire J.
Ndlovu & Hwacha Legal
Practitioners – applicants' legal practitioners
Civil Division of the Attorney
General's Office – 1st respondent's legal practitioners
Scanlen & Holderness – 2nd and 3rd
respondents' le gal practitioners.
