Urgency re: Commercial and Humanitarian Considerations and Interests of Minors

HB33-09 : CASTRO NDLOVU vs IAN DAVID GUTHERLESS N.O. and DONALD MAZWI SIBINDI and DIDYMUS MUTASA N.O. and THE MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS-BULAWAYO
Ruled By: KAMOCHA J

The present applicant, Castro Ndlovu, was personally served with the application on 17 December 2008 but did nothing about the matter, and the...., order was granted by default. He only reacted when eviction was about to be effected in terms of the court order, and filed this urgent chamber application seeking a provisional order whose interim relief ...

The present applicant, Castro Ndlovu, was personally served with the application on 17 December 2008 but did nothing about the matter, and the...., order was granted by default.

He only reacted when eviction was about to be effected in terms of the court order, and filed this urgent chamber application seeking a provisional order whose interim relief was as follows -

“Pending the finalization of this matter, the applicants (sic) are granted the following interim relief:-

1.) That first and second respondents be and are hereby interdicted from executing the warrant of execution under case number 2348/09 pending the finalization of this urgent chamber application under HC127/09.

2.) If already executed, the Deputy Sheriff be and is hereby ordered to restore the applicant vacant possession of Plot 6 Airport Road, Bulawayo.”

The applicant detailed his reasons for filing this application on a certificate of urgency. Inter alia, he stated that he had simultaneously, with this application, filed an application for rescission which, according to him, had merit.

In relation to the present application, it was his averment that he had invested heavily in the property by rehabilitating the borehole which had not been functioning. He claimed to have done that by installing the pump, motor, booster, and electric code. He also had allegedly erected a fence around the property. In addition to that, he claimed to have cleared one hectare of land at his own expense, and had invested heavily in planting maize, butternuts and garden plants, which he used in his landscaping business, thereby turning the property into a productive unit.

The alleged investment cost him US$25,000=.

He claimed to be trained farmer who was anticipating returns from the investment that he had made on the land, and if evicted, he would suffer heavy financial losses. His crops were perishables which were bound to perish in the event that he was evicted.

He employed seven full-time workers who kept the crops thriving. The said workers lived on the property with the applicant. He himself is married, with three minor children, and has two dependants. In the event of an eviction, all these people would be rendered homeless and destitute, as there was no alternative place to keep them all.

In conclusion, the applicant asserted that he was an innocent citizen who had benefitted from the Government land reform programme and possessed the requisite documents for that.

The respondent, on the other hand, countered the applicant's claims by saying there was no truth at all in the applicant's averments.

He was only spurred into action when an eviction pursuant to the default judgment was imminent, and was merely trying to postpone the day of reckoning.

The applicant was not being truthful about the investment he claimed to have made on the property and the rehabilitation of certain items. The deponent to the founding affidavit of the first respondent stated that he had gone to the property in the company of the Deputy Sheriff, who was going to effect the eviction, on 26 January 2006, and had the opportunity to inspect the property for such things as alterations or improvements. He discovered that the borehole had been vandalized, contrary to the claims that it had been repaired.

The applicant's claims were clearly false.

Similarly, his claim that he had erected a fence around the property was false, as there was no new, or added, fence on the property. The fence was still as originally invested by the deponent's family.

The applicant was also being untruthful when he claimed to have cleared a hectare of land for agricultural purposes. The maize he claimed to have planted was on a patch of land approximately 20m * 20m, and was certainly no more than the size of a nutrition garden. The patch of land on which he had planted butternuts was approximately 100m * 20m. The combined value of the maize crop and the butternut, according to the deponent, was completely negligible.

There was no truth at all in the suggestion that the applicant had invested an equivalent of US$25,000=, as that was not even visible anywhere on the property.

This court has repeatedly emphasized that applicants who approach the court on an urgent basis need to be extra careful about what they say in their founding affidavits.

HB89-09 : DUMISANI NCUBE vs THE ZIMBABWE REVENUE AUTHORITY (ZIMRA)
Ruled By: NDOU J

The second point in limine is whether the application is urgent. The first ground of urgency given by the legal practitioner in the certificate of urgency, and the applicant, in the founding affidavit, is that the petrol should be released. The impression created is that the petrol is still in the custody of the respondent, when, in fact, ...

HH150-10 : STRAUSS LOGISTICS LIMITED (UK) vs BP & SHELL MARKETING SERVICES (PRIVATE) LIMITED and SHELL ZIMBABWE (PRIVATE) LIMITED and BP ZIMBABWE (PRIVATE) LIMITED
Ruled By: PATEL J

Moreover, it is submitted for the respondents', the reason for the application is stated in the founding affidavit..., as being the imminent sale of the first respondent. However, on the papers before the Court, no such sale of shares or assets in the first respondent is presently envisaged. The applicant's claim lies exclusively against the ...

HH170-10 : ASSESTFIN (PVT) LIMITED vs ANTONY PAREWA and PAUL CHIDAWANYIKA and TAKTA INVESTMENTS (PVT) LIMITED and CHIGWANDA AND ASSOCIATES LEGAL PRACTITIONERS and REGISTRAR OF DEEEDS
Ruled By: MAVANGIRA J

This is an urgent chamber application in which the applicant seeks the following relief - “TERMS OF FINAL ORDER SOUGHT The respondents should show cause why a final order should not be made in the following terms - 1. Respondents be and are hereby interdicted from transferring Stand No.140 Christon Bank Township of Maryvale of Mgutu of Great B, ...

This is an urgent chamber application in which the applicant seeks the following relief -

“TERMS OF FINAL ORDER SOUGHT

The respondents should show cause why a final order should not be made in the following terms -

1. Respondents be and are hereby interdicted from transferring Stand No.140 Christon Bank Township of Maryvale of Mgutu of Great B, before determination and finalization of Case No. HC1753/09.

2. First and second respondents should pay costs of suit on a higher scale of attorney and client scale jointly and severally one paying for the other to be absolved.

INTERIM RELIEF SOUGHT/GRANTED

Pending the determination of this matter, the applicant is granted the following relief:-

That the respondents and all those claiming rights through them be and are hereby barred from transferring property known as Stand No.140 Christon Bank Township of Maryvale of Mgutu of Great B to any third parties.”

The deponent avers that the applicant company is the registered owner of an immovable property known as Stand No.140 Christon Bank Township 9 of Maryvale of Mgutu of Great B. He further avers that when the proceedings in HC1753/09 commenced he registered an XN caveat on all his immovable property to avoid unscrupulous individuals transferring property owned by the applicant company without lawful excuse and depriving the applicant company of its property in favour of third parties. The deponent avers that he has since received information that the first to the fourth respondents have applied to change ownership of the property in question without his knowledge, without a Board Resolution, and without a lawful court order as the matter in HC1753/09 is still pending. The deponent contends that if this Court does not stop this illegal act, the applicant company will be permanently deprived of its property. He contends that the respondents cannot deprive the applicant company of its assets in favour of third parties without the finalization of the matter in HC1753/09.

The third and fourth respondents further contend that the matter is not in any event urgent as the deponent to the founding affidavit became aware of the impending transfer of the property in question to Total Insurance Company Limited more than seven months ago, judging from the date of registration of the XN Caveat. Any urgency would have arisen then but the deponent opted to do nothing about it at that time.

It appears to me that it is necessary to also deal next with the point raised by the third and fourth respondents, that the matter is not urgent.

The interdict is purportedly sought pending the determination of HC1753/09 in which the Directorship of the applicant company is to be decided. The deponent to the founding affidavit avers that he registered an XN caveat on all “his” immovable property when he instituted proceedings in HC1753/09. He presumably includes in this description the immovable property in question. He does not state when it is that he instituted the said proceedings. However, the third respondent's averment that the XN caveat was registered some seven months ago stands unchallenged. The registration of the caveat was, as stated by the deponent to the founding affidavit, triggered by the apprehension that the property may be transferred to third parties. This must, in my view, be considered against the fact that the property in question was sold to Total Insurance Company Limited in 2004 by the applicant company, and that this was at a time when the deponent to the founding affidavit was a Director in the applicant company. From the documents attached to the first and second respondent's opposing affidavit, particularly the letter dated 13 December 2004, a sale was concluded between the applicant company and Total Insurance Company Limited. The letter reads -

“Re: Cession of Title Deeds: Stand 140 Christon Bank Transfer Number 0009579/2000

The title deeds for the above named property were ceded to Total Insurance Company Limited on 7 March 2004, following the conclusion of a Sale Agreement. We are agreeable to them being used to secure any borrowings from CFX Bank Limited.”

The above quoted letter was authored by the deponent to the founding affidavit together with one E. Mapanzure, as the then Directors of the applicant company, and was addressed to CFX Bank Limited. Transfer of the property to Total Insurance Company Limited would have become imminent in 2004 or soon thereafter. The veracity of the contents of the letter is borne out by the Agreement of Sale also attached to the first and second respondents' opposing papers. It is an Agreement entered into by and between the applicant company, on the one hand, as the Seller of the property in question, and Total Insurance Company Limited, on the other, as the Purchaser. It is also an undisputed fact that Total Insurance Company Limited later sold the same property to the third respondent. If not in 2004, then certainly in 2009 at the latest; when the deponent to the founding affidavit registered the caveat he was aware, or alive to the possibility, of transfer of the property from the applicant company to Total Insurance Company Limited. It can only be then that the urgency that he now wants this court to consider might have arisen - if at all. That was the time for him to take the action that he now purports to do by filing this urgent chamber application. There is no explanation why that was not done. It is in such circumstances that purported urgency is said to be self created. When urgency is self-created, applicants should not expect this court to cease all else in order to entertain them. The application in casu appears to be one such application.

I therefore find that this matter is not urgent....,.

For the above reasons I ruled that this matter is not urgent and dismissed it with costs.

HH172-10 : COTTON GINNERS ASSOCIATION vs SINO ZIMBABWE COTTON HOLDINGS (PVT) LTD and AGRICULTURAL MARKETING AUTHORITY
Ruled By: CHIWESHE JP

In this urgent chamber application, the applicant, established in January 2006 to represent and coordinate companies in the cotton industry in Zimbabwe, seeks a provisional order against the first respondent in the following terms - “TERMS OF THE FINAL ORDER SOUGHT 1. The first respondent is hereby interdicted from purchasing any contracted seed cotton from growers ...

“TERMS OF THE FINAL ORDER SOUGHT

1. The first respondent is hereby interdicted from purchasing any contracted seed cotton from growers contracted to the applicant's members.

2. The first respondent is interdicted from purchasing or taking delivery of any seed cotton packed in cotton packs bearing the logo or name or acronym of the applicant's members.

3. The first respondent is ordered to render an account of the seed cotton that it purchased in Zimbabwe in year 2010 cotton marketing season showing the names of the growers from whom the cotton was purchased, their identity numbers and quantities of cotton seed purchased from each grower, within 10 days of being served with this Order.

4. The first respondent is ordered to surrender to the applicant all the contracted seed cotton purchased from growers contracted to applicant's members during the 2010 season within 15 days of the date of this Order.

5. The first respondent shall pay costs of suit.

INTERIM RELIEF GRANTED

1. The first respondent is hereby interdicted from purchasing or taking delivery of any contracted seed cotton from growers contracted to the applicant's members.

2. The first respondent is hereby interdicted from purchasing or taking delivery of any seed cotton packed in the cotton packs of applicant's members.

3. First respondent is ordered to purchase seed cotton solely from the common buying points used by other cotton buyers in Zimbabwe.

4. Pending the confirmation of this Order, first respondent is interdicted from selling, exporting or howsoever disposing of any seed cotton purchased in Zimbabwe during the year 2010.”

The opposing affidavit is to the following effect. Firstly, the first respondent raises a point in limine, namely, that the application lacks urgency.

At the hearing of this application the first respondent raised a point in limine, namely, that the application lacked urgency. I ruled in favour of the applicant because it was shown, prima facie, that the applicant's members could face financial collapse, and, because of the short marketing season, it was important that the applicant seeks urgent relief.

HH101-11 : HERENTALS COLLEGE (PRIVATE) LIMITED vs RELEASE POWER INVESTMENTS (PRIVATE) LIMITED and ONIYAS GUMBO and MR CHINYAMUCHIKO (In his capacity as the Headmaster of Cold Comfort Primary School)
Ruled By: BERE J

From the papers filed, coupled with the detailed submissions made by both counsel, it is apparent that the applicant and the first respondent are literally fighting over the ownership of Stand Number 7953 Tynwald of Stand 7739 Tynwald Township, Harare. The conflict between the two parties has manifested itself mainly over the control of the ...

The applicant has sought to be granted interim relief interdicting the first, second, third and fourth respondents from interfering with the running of the educational institution pending the determination of this dispute.

The urgent chamber application itself, in summary, provides the background to the issue that has been placed before the court and it has been summarized as follows:-

“Applicant's operations of running the school are being seriously interfered with by the first and second respondent who is claiming ownership of same. The applicant purchased Stand No. 7953 Tnywald Township of Stand 7739 Tynwald Township together with the school and has registered hundreds of minor children at the school who are now being barred from attending lessons unless they pay fees to the first respondent and recognise the second, third and fourth respondents.

Applicant's business has been disrupted together with minor children's education hence the need for this Honourable Court's intervention on an urgent basis.”

The same averments are amplified in the certificate of urgency filed by Raphael Tapiwanache Maganga. The applicant's position is further graphically canvassed in the founding affidavit of Emmanuel Silas Mahachi, the Executive Director of the applicant…..,.

POINTS IN LIMINE

It is imperative that before I deal with the matter on the merits I consider the points in limine raised by the respondent in its notice of opposition….,.

THE URGENCY OF THE MATTER

From the submissions made by both counsel, and what one could read through the papers filed of record, it was clear that the dispute between the applicant and the first respondent had created total chaos at the institution in question with the result that the education of the children was being severely interfered with. If such action could not have been heard on urgent basis then I am unable to imagine any better situation that would scream for the court's urgent attention.

It was for these reasons that I found it necessary to deal with the matter on merits and on an urgent basis.

HH01-11 : MUROWA DIAMONDS vs COMMISSIONER GENERAL OF THE ZIMBABWE REVENUE AUTHORITY
Ruled By: GOWORA J

It was contended that if the relief sought was not granted the applicant would suffer loss. What that loss constitutes has not been stated. Indeed, it would be contradictory for the applicant to seek to establish irreparable harm. In paragraph 17 of the founding affidavit, it is stated that the applicant is a company with considerable ...

It was contended that if the relief sought was not granted the applicant would suffer loss. What that loss constitutes has not been stated.

Indeed, it would be contradictory for the applicant to seek to establish irreparable harm. In paragraph 17 of the founding affidavit, it is stated that the applicant is a company with considerable assets and that the respondent would not be at risk in failing to recover any amount that is found to be properly due. How then can a company with considerable assets be at risk if its account were to be deprived of the sums sought by the respondent as withholding tax? The least the applicant could have done was to present to the court a financial statement that would confirm its allegation that the exercise by the respondent of his power under the Act concerned would leave the applicant with a cash deficit.

This it has not done.

Indeed, it was submitted on its behalf, that the Commissioner would not know how the applicant's business is run and how a shortfall of US$250,000= would affect that business. The applicant would expect this court to accept its mere say so that an appropriation by the respondent of an amount of US$250,000=, which is admittedly owing, would leave it impecunious. The court does not know how the applicant runs its business and would therefore require evidence of the effect of the deprivation of these funds, especially when one takes into account the fact that these sums are admittedly owed to the fiscus.

The applicant has said that it will suffer damage that cannot be compensated in any other way than the grant of an interdict. It does not specify what specific harm it will suffer, and, in the circumstances, I am unable to find that any action on the part of the respondent would cause harm to the applicant.

As for the balance of equities, in my view, this favours the Zimbabwe Revenue Authority which is owed money by the applicant and which money, in terms of the Act, the respondent is obliged to collect. I am unable to agree with the submission that the State benefited from the foreign currency paid to the Reserve Bank in 2007 because the circumstances surrounding such payment have not been explained by the applicant.

In the premises, it is my view that the application is devoid of merit and it is hereby dismissed with costs.

HH328-13 : NORTHERN FARMING [PVT] LTD vs VEGRA MERCHANTS [PVT] LTD t/a VEGRA COMMODITIES and CHENA MILLERS (PVT) LTD
Ruled By: MAFUSIRE J

The first respondent's point in limine was that the matter was not urgent. However, its basis for saying so was in effect its only major point on the merits. It was argued that in the absence of an award or judgment in its favour it was premature for the applicant to seek an ...

HH334-13 : MAXWELL MATSVIMBO SIBANDA vs TSANGA TIMBERS and RICHARD SAZIYA and PARKS & WILDLIFE MANAGEMENT AUTHORITY OF ZIMBABWE and OTHERS
Ruled By: BHUNU J

Counsel for the third respondent raised the following issues in limine. He submitted that the certificate of urgency was not proper as it was signed by the same legal practitioner as that representing the client. He further submitted that as the problem was declared as a dispute in April 2012, if there was indeed any ...

Counsel for the third respondent raised the following issues in limine.

He submitted that the certificate of urgency was not proper as it was signed by the same legal practitioner as that representing the client. He further submitted that as the problem was declared as a dispute in April 2012, if there was indeed any urgency it should have surfaced then. He argued that given that the first respondent had terminated the cutting rights as way back as April last year, the urgency could not be said to have arisen now. In support of his contention he cited the case of Kuvarega v Registrar General and Anor 1998 (1) ZLR 188…,. He argued that both the applicant and the respondents have submitted documents which clearly indicate that the matter had been the subject of written correspondence between the parties. These documents, he opined, reveal that the urgency is self-created.

Counsel for the fourth and fifth respondents was in agreement with counsel for the third respondent's submissions regarding the lack of urgency….,.

Counsel for the first and second respondents submitted that the applicant ought to have been aware of the developments on the said property given that as way back as June 28, the third respondent had flighted a tender process and subsequently advertised in the Manica Post as to who had been awarded the tender. He further argued that the applicant had not established a clear right in relation to the estate.

In explaining the delay in bringing the matter as an urgent one before the court, counsel for applicant argued that prior to the 7^thof September, no one was cutting trees and therefore there was no urgency in the matter. She further submitted that this urgent application is not premised on a clear right but rather on a prima facie right as detailed in the applicant's assertions in Case 6975/13 which is yet to be determined by the court.

Points in Limine

On the issue raised by counsel for the third respondent that the certificate of urgency is not proper as it has been signed by the same legal practitioner as that representing the applicants, this is not detrimental. He did not labour the issue and admitted to there being different interpretations of the relevant Rule. Rule 242(2) states that where an applicant is legally represented in an urgent chamber application, the application must be accompanied by a certificate from a legal practitioner supporting the urgency of the application. It does not state that the legal practitioner must be from a different firm. In favour of such an interpretation of Rule 242(2) see for example the remarks by CHATUKUTA J in Route Toute & Ors v Sunspun Bananas (Pvt) Ltd HH27-10…,.

It appears to me that whether the matter is, in fact, urgent, is best determined by addressing the issue of whether the applicant has prima facie rights to the property which need immediate vindication.

The applicant does not dispute the various correspondences with the first respondent tendered as annexures to the application. Also submitted is the Agreement of Sale for “cession of cutting rights” of May 2003 under which he purchased the cutting rights which states as follows in clause 2:

“The buyer (at its sole discretion) will be responsible for applying for the renewal of the Lease of Cutting Rights prior to its expiration in 2011.”

In October 2011, the applicant wrote to the third respondent requesting the third respondent to renew the cutting rights for a period of thirty years, which seems to indicate he was aware that he had no unfettered rights. He received a response in December 2011 to the effect that the third respondent was not in position to renew the cutting rights. He wrote, again, in December 2011, essentially pleading his case, to which he received a response that he had been granted permission to collect only his sawn timber and that he would be granted a meeting. Various correspondences, largely at the instance of the applicant, to try and get a renewal were made. The third respondent persistently turned these down with a final letter written on the 28^th of August by the third respondent indicating that as far as they were concerned, they had closed the matter.

The applicant, in his affidavit, says the various correspondences took place because he was labouring under a misapprehension that the cutting rights had expired when in fact no transfer of the land had taken place in 1986. It is the substance of these misapprehensions that is yet to be determined under case 6975/13. Suffice it to say from the time that he received the final correspondence dated 28 August 2012 from the third respondent to the effect that the matter was closed, to August 28 2013, the applicant had not seen it fit to take action to protect his perceived rights.

His argument that the urgency has arisen now because the timber is being cut cannot be supported since what has given rise to the activities needs to be looked at from a holistic and contextual point of view. It must have been reasonably foreseeable, judging from the correspondence that the logical outcome of failure to renew the cutting rights by the third respondent would be that someone else would be given the rights. Counsel for the third respondent cited the case of Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 where the late CHATIKOBO J succinctly stated as follows:

“What constitutes urgency is not only the imminent arrival of the day of reckoning. A matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near, is not the urgency contemplated by the Rules.”…,.

Once it was made clear to the applicant that the cutting rights would not be renewed; that is the point at which he should have sought to institute his urgent application. Accordingly, I find that the matter is not urgent.

The result is that the matter is not urgent.

HH351-13 : SOVEREIGN EMPOWERMENT CENTRE and HACHIM KITCHENS PL and KINGDOM EMBASSY ZIM and STUARTSON INVESTMENTS PL vs OLD MUTUAL INVESTMENT GROUP PROPERTY INVESTMENT ZIM PL and THE SHERIFF (N.O.)
Ruled By: MANGOTA J

The applicant's, in the chamber urgent counter- application, further reason for bringing the application on an urgent basis was anchored on what it termed 'a clear case of commercial and moral urgency of a continuing nature'. It stated that vacant possession of the premises should have been given to the contractors on 23 September ...

It stated that vacant possession of the premises should have been given to the contractors on 23 September 2013. The company which it contracted to demolish the buildings on the property had the timeframe of 23 September - 23 November 2013 to complete the demolition work, according to the applicant. That company had, as at 23 September 2013, mobilised its resources in terms of personnel which was to do the work and the equipment which it would use in the demolition of buildings. The resources are on standby waiting to commence work, it said. The applicant stated, further, that it is already behind schedule in terms of the agreed timeframes which are in the contract that it concluded with the demolition company. It said it stood to incur claims by the demolition company for income lost while the equipment and the personnel are waiting for the surrender of the premises.

In the court's view, the applicant has no one to blame but itself for the situation in which it finds itself. It did not act as a diligent business person who takes all necessary precautions to ensure that persons who occupy its premises - legally or otherwise – have been cleared from, and made to vacate, the same before the demolition company is engaged. It engaged the company and mandated it to commence the work of demolishing the buildings which are at the property on 23 September 2013. But, as late as 29 September 2013, the applicant was not aware of the presence of the respondents on its property. What it stated on this point is self-inflicted injury which, through the exercise of diligent care, the applicant could easily have avoided.

The other reason which the applicant advanced for bringing its application on an urgent basis was its expressed fear. It said it feared that, since the respondents are now aware that they will be evicted, the respondents may strip the premises of fixtures in a manner which is prejudicial to its interests.

This is a very far-fetched argument to say the least. The court has already been made aware of the deplorable state in which the property was when the respondents took occupation of it. The respondents, in the court's view, are the persons who repaired their respective apartments which vagrants and street children had vandalised at the time that the applicant had abandoned its property. When they, therefore, proceed to remove and take from the property what belongs to them during the time of their lawful eviction from the same, their conduct in the mentioned regard cannot in any way be constructed by the applicant or anyone else for that matter to be working towards the prejudice of the applicant. In any event, the applicant has already contracted a company which will demolish the property's buildings as soon as vacant possession of the same has been made by the respondents. The applicant did not ever state that it will remove fixtures from the property's buildings before the demolition work commences. The point which the applicant raised on this matter is, accordingly, not a sustainable one.

The last, but not least, reason which the applicant advanced for having the matter heard on an urgent basis centres on the applicant's fear of incurring, or suffering, damages which are grounded in delict.

It stated that the continued occupation of the property by the respondents places an obligation on it to involuntarily assume the risk, as owner of the premises, of incurring damages in the event of any loss of life or injuries to limbs being suffered by the respondents.

The applicant continues to refer to the respondents as illegal occupants whom it wants to be evicted from its property. The applicant knows, as much as the court does, that the respondents' continued occupation of the property will be at their own risk. Surely, the defence of volenti non fit injuria would avail itself to the applicant where the respondents venture to sue it under such circumstances. The applicant's argument in this mentioned regard, like in the other matters which the court has already examined, does not hold any water.

HB64-11 : ARJUN INVESTMENETS (PVT) LTD vs THOMAS MUTAMBIRWA and FLORENCE VENTER and SARAH NDLOVU and TENDAI CHIEZA and OTHERS
Ruled By: CHEDA J

(3) URGENCY The respondents argued that this is a 2008. They therefore query why it was now being brought up as an urgent matter. The property was condemned not to be suitable for human habitation as was back as September 2008. The defect remains to date. In my opinion, the fact that it remains in that ...

HB85-11 : SISA MPUNZI (NEE MOYO) vs DUBUZA RATION MPUNZI and REBECCA MOYO
Ruled By: NDOU J

The applicant has made false averments on the plight of the children to win the court's sympathy. On the basis of such falsehoods, the application should fail – Venter vs Van Groan 1929 TPD 435 and Graspeak Investments P/L vs Delta Corporation P/L Anor 2001 (2) ZLR 551 (H)…,. The applicant has used…, falsehoods and misrepresentations ...

HH68-14 : FAIRDROP TRADING (PRIVATE) LIMITED vs THE ZIMBABWE REVENUE AUTHORITY
Ruled By: MAFUSIRE J

The next objection in limine raised by counsel for the respondent was that the application was not urgent. The garnishees had been imposed from since July 2013 to November 2013. The last had been on 16 January 2014. The need to act had arisen much earlier than 4 February 2014 when the urgent chamber application had ...

The next objection in limine raised by counsel for the respondent was that the application was not urgent.

The garnishees had been imposed from since July 2013 to November 2013. The last had been on 16 January 2014. The need to act had arisen much earlier than 4 February 2014 when the urgent chamber application had finally been filed.

The urgency that is contemplated by the Rules of Court is not only gauged by the imminence of the day of reckoning. It is also gauged by the day the need to act arose. In Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H) CHATIKOBO J said…,:

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the Rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been any delay.”

Counsel for the applicant argued that in this matter there was commercial urgency in the sense contemplated in the Silver's Trucks (Pvt) Ltd & Anor v Director of Customs and Excise 1999 (1) ZLR 490 (H) case. In that case, the urgent chamber application had been brought some four months after the applicant's goods had been embargoed by customs. It was held that the court has power to hear an application as a matter of urgency not only when there is a serious threat to life or liberty but also where the urgency arises out of the need to protect commercial interests. See also the case of 20^th Century Fox Film Corporation & Another v Anthony Black Films (Pty) Ltd 1982 (3) SA 582…, which is quoted by SMITH J in the Silver's Trucks (Pvt) Ltd & Anor v Director of Customs and Excise 1999 (1) ZLR 490 (H) case…,.

I was satisfied that the matter was urgent.

The last garnishee by the respondent was on 16 January 2014. It was against the applicant's bank. It was a very serious stranglehold on the applicant's major revenue. There was no inordinate delay when the urgent chamber application had eventually been filed on 4 February 2014. The application was quite voluminous - 199 pages. Therefore, it must have required lots of time to put it all together.

HH71-14 : FALCON JUNIOR SCHOOL vs HATFIELD PRESBYTERIAN CHURCH
Ruled By: MWAYERA J

I will deal with the first point. It is clear from the certificate of urgency that the applicant is decrying that they have been disturbed of their lawful possession, and, as such, cannot carry on with their activities at the school. This was further buttressed in the founding affidavit, and, in the oral submissions, the ...

HH87-14 : MUTUMWA MAWERE and SMM HOLDINGS LTD and THZ HOLDINGS LTD and AFRICA RESOURCES LTD vs MINISTER OF MINES AND MINING DEVELOPMENT and ZIMBABWE MINING DEVELOPMENT CORP and AFARAS GWARADZIMBA
Ruled By: MANGOTA J

The respondents' second matter in limine was, or is, that the present application is not urgent. The applicants, on their part, insisted that the application was urgent. The urgency of the application, they said, arose from two matters which were that:- (a) The first applicant received a warrant of execution; and (b) The attorneys of the ...

The respondents' second matter in limine was, or is, that the present application is not urgent.

The applicants, on their part, insisted that the application was urgent. The urgency of the application, they said, arose from two matters which were that:-

(a) The first applicant received a warrant of execution; and

(b) The attorneys of the respondents in the rescission of judgment application which was set down for hearing on 3 March 2014 confirmed to the applicants that they intended to execute the warrant without any further delay.

The applicants attached to their founding affidavit, Annexures A and B, which annexures would, in their view, assist the court in determining the urgency, or otherwise, of the application.

At the time of the hearing of the matter, the warrant of execution which the applicants made reference to was not in the record of proceedings. The applicants were kind enough to submit that warrant. They did so at the instance of the court which drew their attention to the absence of the warrant from the record and its request that it be made part of the record because of its importance in the determination of the case. The applicants submitted the warrant on 20 February 2014. Attached to the warrant is a document which is entitled NOTICE OF ATTACHMENT, I.T.O. RULES 45(12). I will, for purposes of clarity, refer to the warrant as Annexure C and the Notice of Attachment as Annexure D. Both those annexures support the claim of the applicants which is to the effect that their matter is urgent.

The applicants argued that the execution of the warrant will result in the first applicant's property, which they said was in excess of R18 million value-wise, being transferred from South Africa to Zimbabwe. There is, according to them, a real risk that once the property has been transferred to Zimbabwe, the applicants will not be able to recover the same in the event of success in a rescission application which is before the court in South Africa or any subsequent appeals. They argued, further, that irreparable harm may be suffered by them if the main application is not dealt with on an urgent basis.

The court mentions, in passing, that the present applications are preceded by a default judgment which the court in South Africa entered against the first applicant. The date on which the first applicant became aware of the judgment which had been entered against him remains unknown. What is known, however, is that the judgment in question was entered, or granted, on 11 October 2012. What is also known is that the first applicant applied for rescission of judgment on 12 August 2013. It can safely be assumed that as of the mentioned date, the first applicant was pretty much alive to the existence of the judgment which, to all intents and purposes, was going to operate against his interests. The Notice of Attachment, Annexure D, which the applicants submitted, is dated 9 December 2013. That Notice, read together with Annexure B, which the plaintiff, or the applicant's legal practitioners in the South African court case, addressed to the first applicant's legal practitioners on 10 December 2013 supports the court's observation which is to the effect that the first applicant became aware of the existence of Annexures C and D from as far back in time as 10 December 2013 or even earlier than the mentioned date. He was, as at that date, also aware that judicial attachment of his property had either taken place or was seriously being contemplated. Paragraph 4 of Annexure B is pertinent to the matter. It, in part, reads:-

“…,. Senior counsel acting for our client made it clear when the rescission application was last in court that our client does not provide any undertaking to stay the execution pending the hearing of the rescission application during February 2014”. …,.

Annexure B is dated 10 December 2013.

The quoted paragraph makes reference to a rescission application which the first applicant made as well as to a hearing which the court in South Africa had scheduled to take place in February - and not 3 March 2014. The first applicant cannot, under the circumstances, be heard to be claiming that he was, as at 10 December 2013, not aware of the existence of the warrant of execution and/or the other party's avowed intention to execute. His knowledge of those matters notwithstanding, the first applicant did nothing about the matter which related to the protection by him of his property which was under the threat of being attached and sold in execution. He remained indifferent to the described set of circumstances from about 10 December 2013 to 30 January 2014 when he said he started to act in an effort to protect his property. He said his action was prompted by the statement which the Minister made on 30 January 2014. The applicants spoke with some degree of eloquence in their endeavour to show the court the steps which they said they took in reaction to the Minister's statement. The steps in question do, no doubt, lead up to the present application. Their counsel…, implored the court to look at his clients' case in the context of its circumstances. He, in this regard, referred the court to the remarks of BERE J, who, in Dodhill (Pvt) Ltd v Minister of Lands and Rural Resettlement & Anor 2009 (1) ZLR 182, 187 said:

“There is no standard formula which determines urgency. Every case number be looked at within its context.”

It is on the basis of the abovementioned remarks, therefore, that counsel for the applicants urged the court not to lose sight of the context which pertains to this urgent chamber application.

The Learned Judge's remarks would have applied to the case of the applicants' pretty well if that case had remained confined to the time that the applicants reacted to the statement of the Minister right up to the stage that they filed this application with the court. It has, however, been observed that the first applicant became aware of the warrant of execution, Annexure C, and the Notice of Attachment, Annexure D, on or about 10 December 2013. He was also aware, at about the same date, of the existence of the letter which threatened execution of the property his application for rescission notwithstanding. The applicants marked that letter Annexure B. He, despite his knowledge in the abovementioned regard, remained inattentive to the threat which the law was likely to visit upon him from about 10 December 2013 to 30 January 2014 when he, for the first time, started to put the wheels of justice into motion with a view to protecting his interests. Simple mathematical calculation shows that he was inactive in regard to the threat for a period of some fifty (50) days running. He proferred no reasons for his inaction. Certainly, this is not the context in which the Learned Judge wanted his remarks to have been understood to mean. The conduct of the first applicant in allowing the matter to remain unattended to for a period of fifty (50) days without any reason on his part for not acting upon it can, at best, be described in the words of CHATIKOBO J…, who, in Kuvarega v Registrar General & Anor 1998 (1) ZLR 189, 193 said:-

“What constitutes urgency is not only the imminent day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from acting until the deadline draws near is not the type of urgency contemplated by the rules.”

The learned judge's remarks are on all fours with the conduct of the first applicant who did nothing for some fifty (50) days running when his goods were under a real threat of being put under the hammer. He allowed that matter to wait and only did have it commenced, in the court's view, in preparation of the rescission application which the court in South Africa set down for hearing on 3 March 2014. This, in a nutshell, is what is termed self-created urgency which cannot properly be placed under the realms of what are, in the strict sense of the word, termed urgent chamber applications.

The court observes and mentions, in passing, that the application in the main case was prepared on 12 or 13 February 2014 and the applicants' affidavit which related to that case was signed and sworn to on 11 February 2014. The court noted, further, that the applicants' urgent chamber application was prepared on 10 February 2014 and that the affidavit which related to that case was signed and sworn to on 11 February 2014. It is evident that the urgent chamber application came into existence prior to the existence of the main application. That evident fact notwithstanding, the application in the main case was filed with the Registrar of this court on 13 February 2014 and the present application was filed with the same office on the following day i.e 14 February 2014. The observed confused state of affairs did arise, in the court's view, from an effort by the applicants to convey to the court the impression that the application in the main case preceded the present application when, on an effortless analysis of the two applications, the reverse of the matter was the case. The applicants' scheme was, unfortunately for them, not a well thought out one. It betrayed their unrewarding effort in a manner which is difficult to countenance.

Their case on this preliminary matter cannot, and does not, hold.

HB128-11 : BEITBRIDGE BULAWAYO RAILWAY (PVT) LTD vs ZIMBABWE AMALGAMATED RAILWAY WORKERS UNION
Ruled By: NDOU J

The salient facts of this matter are the following. The respondent filed a court application under HC1524/09. This is the main substantive case to all these and many other peripheral cases which now seem to clutter the real issues between the parties. Under HC1524/09 the respondent seeks to set aside an award by arbitrator, Mrs Gladys ...

The salient facts of this matter are the following.

The respondent filed a court application under HC1524/09. This is the main substantive case to all these and many other peripheral cases which now seem to clutter the real issues between the parties. Under HC1524/09 the respondent seeks to set aside an award by arbitrator, Mrs Gladys Mpemba. The respondent's members were retrenched in October 2009 and they were all paid their retrenchment packages - all duly approved by the Ministry of Labour. From 2009 to date, the respondent has not succeeded in setting aside arbitrator, Mrs Gladys Mpemba's award. Instead of setting down the main case, under HC1524/09, the respondent has filed a litany of applications. The writ of execution in this matter arises from one such tangential application and not from the substantive determination that the respondent's members are owed any money or that they were unlawfully retrenched. The applicant contends that this alone is a compelling reason for staying execution. The case under HC1524/09 was set down when the respondent sought judgment off a technicality and not on the merits.The respondent obtained such order by default. Under case number HC1962/10, the applicant sought and obtained an order rescinding the above order by consent. In this matter, what is clear is that after filing the main case under HC1524/09, in October 2009, the respondent thereafter filed an ex parte chamber application under case number HC1534/09 seeking a provisional order that the applicant be interdicted from “making any payment of terminal benefits consequent to the arbitral award pending final determination of HC1524/09.” The provisional order was granted ex parte. It is important to note that by the time the provisional order and the urgent chamber applicant in HC1534/09 were served on the applicant the retrenchment packages or terminal benefits which the application was trying to stop had already been paid out to all the retrenched members of the respondent. The retrenchment pay-outs were made on 1 October 2009 whilst the ex parte application to stop payment of the same retrenchment package, HC1534/09, was filed a whole week later, on 7 October 2009, and served on 8 October 2009. In fact, it is apparent that by the time the main application in HC1524/09 was filed and served, the retrenchment packages had already been paid out to the individual employees. Proverbially speaking, the order under HC1534/09 was issued well after the horse had bolted. There was a brutum fulmen. The respondent had a duty to disclose these facts honestly and fully when he made the said application…..,.

In February 2011, instead of setting down the main case under HC1524/09, or setting down the return date of the ex parte, under HC1534/09, the respondent filed a chamber application under HC318/11 for the issue of writ in the sum of US$330 883,=92 as arrear salary for the period since the provisional order which had been lying idle since 2009. This chamber application simply ignored the contents of the opposing affidavit in case number HC1534/09 which show, and this has not been disputed, that the respondent's members were paid their retrenchment packages. The applicant opposed the latter chamber application on 1 March 2011. The chamber application was not set down. On 2 June 2011, and without formally withdrawing the earlier opposed chamber application under case number HC381/11, and without communicating to the applicant, the respondent issued yet another application under case number HC1478/11 for the same relief as was sought in the pending chamber application under case number HC381/11. It is on the basis of the court application under case number HC1478/11 that the writ has been issued to attach the applicant's property. This court application, pursuant to which the writ has been issued, case number HC1478/11, was not served on the applicant's legal practitioners of record nor their Bulawayo correspondent Messrs Job Sibanda Legal practitioners who are appointed in all these earlier stated matters as the formal address for service for the applicant.

The service was effected directly on the applicant.

What can be gleaned from the papers in case number HC1478/11 is that the affidavits used to support the claim therein are exactly the same affidavits that were filed in the earlier case under case number HC381/11 which is still pending and in respect of which there has not been withdrawn or payment or tender of costs. These affidavits were simply transported from HC381/11 to HC1478/11; the cause of action is the same….,.

The respondent raised a point in limine that the application is not urgent.

The default judgment was entered on 3 June 2011. The respondent's legal practitioners informed, by letter, the applicant's legal practitioners on 29 July 2011. Thereafter, there was dialogue between the parties. These deliberations yielded some limited success in that the applicant's property which had been attached by the Deputy Sheriff was released to the applicant pursuant to a letter addressed to the Deputy Sheriff by the respondent's legal practitioners. This letter, dated 5 September 2011, reads, inter alia;

“Agreement has been reached between the parties that the property you removed, following attachment, be released to the judgment debtor pending final determination of the urgent application filed by the judgment debtor.”

I have given this detailed history to evince the type of litigant that the respondent is.

In brief, the respondent will not shy away from using any legal technicality that comes its way. The conduct of the respondent's case is characterized by non-disclosure of material facts and unfair taking advantages of technicalities. The applicant is reasonable when it fears the respondent dangling the writ. The writ may be used without notice to the applicant to the irreparable detriment of the applicant's operations. This makes the matter urgent. In any event, the respondent has conceded that the writ be stayed until the return date in this application. I do not see why this should not be extended to the finalization of the main matter under HC1524/09. The potential loss to the applicant in the event of its success is likely to be irreparable as the retrenched workers may not afford to pay back the total figure of $330,883=92. The writ of execution is based on an unconfirmed provisional order and for over two years the respondent has avoided setting it down for determination on the merits. With all this in mind I find that the application is urgent and a case has been made for the interim relief sought in the provisional order.

Accordingly, the provisional order is granted in terms of the amended draft order.

HH185-14 : THE WATTLE COMPANY LTD vs JOHN GADZIKWA and THE DEPUTY SHERIFF
Ruled By: TAGU J

The applicant detailed its reasons for filing this application on a certificate of urgency. Inter alia, it stated that it became aware of the court order on 11 April 2014 at the time of attachment of its assets. In relation to the present application, counsel for the applicant, who certified this matter as urgent, stated that ...

The applicant detailed its reasons for filing this application on a certificate of urgency.

Inter alia, it stated that it became aware of the court order on 11 April 2014 at the time of attachment of its assets. In relation to the present application, counsel for the applicant, who certified this matter as urgent, stated that if the removal is allowed to take place, the applicant will suffer irreparable harm given that the applicant will completely cease to operate and will close down thereby prejudicing all other retrenches who are in a worse off position than the first respondent and current employees who are owed close to one year in salary arrears. He urged the court to grant the relief for the sake of equity, fairness and justice for the benefit of other employees.

Mr Lisias Chadya Sibanda, the applicant's Executive Chairman, averred that the attached property are the entire assets of the company which is mainly machinery and tools that are used for operating the company. The majority of these assets were imported and without them the company will be closed. He said as it stands the applicant has paid a total of $50,000= to the first respondent reducing the debt from $199,473= to $149,473=.

The first respondent, on the other hand, countered the applicant's claims by saying there was no truth at all in the applicant's averments. Firstly, the first respondent contended that the applicant's explanation was unreasonable and unacceptable. Counsel for the first respondent argued that there was no urgency in this matter. He said the applicant was not being truthful to the court as material facts were concealed. He said counsel for the applicant was aware of the judgment and order of the court as far back as 27 February 2014. He argued that there was no appeal filed against the order in case HC7394/13. Further, he submitted that there was also no application for rescission of judgment filed against case HC7394/13. In any case, he argued that the applicant is already out of time if it wanted to appeal. Firstly, it has to apply for condonation of late noting of appeal. Secondly, it also has to make an application for condonation for late filing of an application for rescission. He argued, further, that there are no prospects of success even if condonation is allowed because the applicant is not disputing that it owes the first respondent. In short, he summed it up by saying this application is being made pending nothing, that urgency in this case was self-created and that the issue of the liquidity crunch and the fact of the company closing down are just excuses, explanations and are not legal arguments. Hence, he prayed that the application be dismissed.

In casu, the applicant is seeking a stay of removal pending appeal. It is apparent from the relief sought that the applicant seeks a stay of execution or removal pending nothing at all yet the first respondent is executing a judgment of this court which still stands. No appeal has been filed to date. Pressed by the court and being challenged by counsel for the first respondent to produce even a copy of the notice of appeal, counsel for the applicant could not do so. Instead, he said his clerk had the copy - yet he had the applicant's file with him.

From the time when it was inevitable that default judgment was to be entered on the 27^th February 2014 to date, the applicant has done absolutely nothing…..,.

This brings me to the issue of urgency raised by counsel for the first respondent.

The applicant contented that it only became aware of the order on the 11^th April 2014. Given the historical background of the matter that I stated above, it is not true. The applicant's legal practitioner was aware, as far back as 27 February 2014, that a default judgment was granted in favour of the first respondent. The applicant was therefore dishonest and concealed information from the court. If the applicant was not aware, at least its lawyer knew. The consequences of being dishonest and concealing information from the court was spelt out in Graspeak Investment P/L v Delta Corporation P/L & Anor 2001 ZLR 551 (H).

In Graspeak Investment P/L v Delta Corporation P/L & Anor 2001 ZLR 551 (H)…, NDOU J had this to say:

“The courts should, in my view, discourage urgent applications, whether ex parte or not, which are characterised by material non-disclosures, mala fides, or dishonesty. Depending on the circumstances of the case, the court may make adverse or punitive orders as a seal of disapproval of mala fides or dishonesty on the part of litigants. In this case, the applicant attempted to mislead the court by not only withholding material information but by also making untruthful statements in the founding affidavit. The applicant's non-disclosure relates to the question of urgency. In the circumstances, I find that the application is not urgent and dismiss the application on that basis.”

In the present case, while the applicant was aware, or deemed to be aware, that there was a default judgement against it as far back as February 2014, did nothing. It was only the attachment of property that jolted the applicant into action resulting in this application being filed on 15April 2014 - even before an appeal or application for rescission of the judgement was made.

In my view, urgency in this case was self-created. In Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H)…, CHATIKOBO J, dealing with urgency in such matters, stated:-

“What constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which sterms from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.”

In casu, the applicant waited until the first respondent caused the attachment of property.

Urgency which comes about as a result of one's failure to act timeously due to lack of diligence or otherwise on their part is not the kind of urgency which these courts can entertain as it is self-created. The application, as contended by counsel for the first respondent, is not urgent as contemplated by the Rules of this Court.

Having come to the conclusion that the matter is not urgent, I need not labour myself in dealing with the other issues such as equity, fairness and justice raised by the applicant. Accordingly, it is ordered as follows:

That the application be and is hereby dismissed with costs.

HH199-14 : TENILLE WHITBY vs MARCEL WHITBY and THE IMMIGRATION OFFICER and EVANS SIZIBA
Ruled By: MATANDA-MOYO J

Justice GUVAVA J…, issued an order in HC5759/12 on 16 January 2014 as follows; 1) That the continued retention of the minor child, C (born 24 January 2009) by the respondent (applicant herein) be and is hereby declared unlawful. 2) The respondent shall return the said minor child to the country of habitual residence, namely, England, within ...

Justice GUVAVA J…, issued an order in HC5759/12 on 16 January 2014 as follows;

1) That the continued retention of the minor child, C (born 24 January 2009) by the respondent (applicant herein) be and is hereby declared unlawful.

2) The respondent shall return the said minor child to the country of habitual residence, namely, England, within 10 days of this order.

3) The applicant pays for the air fares in order to enable the respondent and the minor child to return to England.

The above order was granted on 16 January 2014.

The applicant had ten days from the court's decision to return the child to England. She had up to 30 January 2014 to comply with the court order. She did not. However, I took it that she was awaiting the tickets from the first respondent to comply with the court order. In compliance with the court order, the first respondent bought tickets for the applicant and the minor child to travel to England on 8 February 2014. The respondent, however, took physical custody of the minor child from the applicant.

As a result, the applicant, on 8 February 2014, the applicant brought this application on an urgent basis seeking the following relief;

“INTERIM RELIEF GRANTED

1. In the interim, and pending the finalization of this matter, it is ordered that the 1^st and 3^rd respondents be and are hereby ordered barred, and interdicted, from removing the minor child, namely, C (born on 24 January 2009), from the jurisdiction of this court.

2. That the 1^st respondent shall forthwith return custody of this minor child to the applicant failing which, Sheriff or his assistant be and is hereby authorized and empowered to visit any place in Zimbabwe where this minor child may be housed and to take the minor child in the Sheriff's possession and to there and then hand over custody of this minor child to the applicant and in the event of resistance the Sheriff shall enlist any member of the Zimbabwe Republic Police to carry out that objective.”…,.

The respondent challenged the urgency of this matter.

He argued that an order of this court was issued on 16 January 2014. From then to date of hearing, no appeal had been noted against the said judgment. The first respondent had purchased tickets in compliance with the court order and the applicant sought to suspend the operation of the court order by approaching this court on an urgent basis. The applicant argued that she only became aware of GUVAVA J's order on 31 January 2014. She conceded she had not appealed against that order and that the judgment was enforceable against her. However, she argued that she was still within the ten day period and could still file an appeal on 10 February 2014.

I found that the applicant had failed to treat the matter with some degree of urgency. Since the order by GUVAVA J enjoined her to act within ten days, she should have immediately noted an appeal or applied for stay of execution. The need to act arose on 16 January 2014 and I found that the applicant did not intend to comply with court order nor to note an appeal. The urgency became self-created after she was given her ticket to fly to England. See Kuvarega v Registrar-General & Anor 1998 (1) ZLR 188 (H).

NO reasonable explanation was proferred for the delay.

I could have dismissed the matter on that basis alone. However, the applicant's counsel submitted that the purpose of the order they had sought was for the return of the physical custody of the minor child to the applicant was so as to enable the applicant to comply with the order of GUVAVA J. Counsel for the respondent indicated he had no problems with an order directing his client to return the child to the applicant for purposes of complying with the order.

In the interest of the minor child, I then proceeded to give effect to the order granted by this court in case HC1042/14.

Appealed
HH328-14 : PACKERS INTERNATIONAL (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: CHIGUMBA J

URGENCY In terms of Order 22 Rule 244, where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of sub-rule (2) of Rule 242 to the effect that a matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to a judge who ...

URGENCY

In terms of Order 22 Rule 244, where a chamber application is accompanied by a certificate from a legal practitioner in terms of paragraph (b) of sub-rule (2) of Rule 242 to the effect that a matter is urgent, giving reasons for its urgency, the registrar shall immediately submit it to a judge who shall consider the papers forthwith. In this case, the certificate of urgency was filed by Ticharwa Garabga, who stated that the applicant's business had literally been shut down and that the garnishee order for twenty million dollars was for money which was not due to the respondent, and was imposed arbitrarily. Other reasons advanced for the urgency of the matter were:

“Applicant was set to lose one thousand workers in a country where the unemployment rate was 90%; the threat to send respondent's employees to man applicant's tills would send the wrong message to applicant's investors and competitors; respondent's conduct would result in the closure of applicant's business and this was counterproductive, especially since applicant was cooperating fully with the respondent and had paid more than two hundred thousand dollars by way of daily installments since April 2014, the appeal to the Fiscal Appeal Court would be rendered nugatory.”

The test for urgency is objective. See Document Support Centre P/L v T.F. Mapuvire HH117-06. This case also found that, in some cases, even purely commercial interests can be protected urgently in appropriate cases and considered the case of Silver's Trucks & Anor v Director of Customs & Exercise 1999 (1) ZLR 490 where the matter of the release of certain attached imported goods was considered on the basis that the applicant would face bankruptcy and its 67 employees would lose their jobs as a result. It was found that, had the court waited, there would have been no need to act subsequently - the applicants would have been liquidated.

Counsel for the respondent submitted that this matter was not urgent, and relied on the case of Triple C Pigs & Anor v Commissioner General, Zimra HH07-07 as its authority, where it was held that:

“…, in order to then give effect to the intention of the courts to dispense justice fairly a distinction is necessarily made between those matters that ought to be heard urgently and those to which some delay would not cause harm.”

See also Dilwin Invetsments P/L t/a Formscaff v Jopa Engineering Company Ltd HH116-98 where it was held:

“A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events. This preferential treatment is only extended where good cause can be shown for treating one litigant differently…, for instance, where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.”

Can it be said that in the circumstances of this case, where the applicant has averred that it cannot operate and is facing insolvency and liquidation, in these current harsh economic times, a delay in the hearing of this matter would not cause harm?...,.

The court should decide whether the threat of being forced into liquidation constitutes a violation of some legitimate interest that the applicant has, that the obligation to discharge its tax liabilities to the respondent does not result in the applicant closing its doors. Surely, by the respondent's own test referred to in Triple C Pigs & Anor v Commissioner General, Zimra HH07-07, if the applicant is not heard immediately, and is forced into liquidation, any relief given in future would be a brutum fulmen and there will be no applicant company to speak of.

The respondent sought to rely on the judgment of my brother Judge, MAFUSIRE, in FairdropTrading (Private) Limited vThe Zimbabwe Revenue Authority HH68-14.

With all due respect to counsel for the respondent, that judgment was concerned with the vicissitudes of section 69 of the Income Tax Act [Chapter 23:06].

While I accept that section 36 of the Value Added Tax Act [Chapter 23:12] is similarly worded to section 69 of the Income Tax Act [Chapter 23:06], in my view, the two tax regimes are based on different premises, different methods of calculation and an over-simplistic view of the similarities would set a dangerous precedent, as each case must be decided on its own peculiar circumstances. The applicant, Fairdrop Trading, did not cooperate with the respondent or make payment proposals to discharge its liability to the respondent; that applicant denied being indebted to the respondent at all.

That distinguishes the circumstance of that case from the case under consideration.

I found this matter to be urgent, not because I disapprove of the conclusion of the respondent to garnish the applicant's account or because I wish to usurp the authority of the respondent. I formed the view that the respondent did not carry out its functions in a fair or reasonable manner in arriving at the decision to garnish the applicant's account in the sum of twenty million dollars. I concluded that previous decided cases, of persuasive authority, have set precedents that allow a matter to be heard urgently where the applicant's commercial interests are at risk; in circumstances where failure to hear the applicant urgently would make it unnecessary for the applicant to be heard at all in future, it would be a futile exercise, because the harm that the applicant fears would have already caught up with the applicant.

HB108-14 : ELIPHAS KAWA vs VICTOR MUZENDA and THE ASSISTANT MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS and VICTOR MUZENDA N.O. and ZEXCOM (PVT) LTD
Ruled By: TAKUVA J

As regards urgency, it was argued that there is urgent need to interdict the first respondent from continuing to access the funds of ZEXCOM (Pvt) Ltd and masquerade as liquidator of ZEXCOM (Pvt) Ltd or as provisional liquidator. In respect of irreparable harm, it was submitted that if the applicant does not obtain the relief sought ...

In respect of irreparable harm, it was submitted that if the applicant does not obtain the relief sought it will suffer irreparable harm in that several thousands of dollars remain unaccounted for as the first respondent stonewalls and thumbs his nose at the judgment refusing to account for the funds….,.

As regards urgency, my view is that the matter is one of extreme urgency.

The urgency arises from the first respondent's conduct and what he intended, or planned, to do shortly after noting his appeal to the Supreme Court on 4 February 2014. It is abundantly clear that he adopted the attitude that it was business as usual and he could perform those functions he had been barred from performing by MAKONESE J. He did not deny penning a letter, dated 7 February 2014, to Barbra Lunga (the incoming liquidator) advising her that, in fact, MAKONESE J's judgment had been “set aside” pending the finalization of the appeal, and that all rentals should be sent to him. When the applicant got wind of these not so good intentions, it filed this application on or about the 19^th February 2014. The applicant was fortified in doing this by MAKONESE J's specific findings on the first respondent's numerous misdeeds.

Most importantly, however, it is not so much of what he did after noting the appeal than what he intended to do, coupled with his previous conduct of lack of transparency, gross incompetence, and non-accountability that alarmed the applicant.

In my view, the issue is not that the applicant must prove that the first respondent is abusing ZEXCOM (Pvt) Ltd funds, but rather that the applicant suspects, on reasonable grounds, that the first respondent is abusing those funds, a fortiori when the court has found that the first respondent is not properly performing the duties imposed upon him by the Companies Act [Chapter 24:03].

SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

URGENCY The appellants claimed that it was their discovery that money was being fleeced out of the school's finances which gave rise to the urgency and not the fact that the Trustees had authorised other persons to run the school. In particular, they claimed that what triggered the application was their discovery, on the 15th ...

SC03-15 : PORTLAND HOLDINGS LIMITED vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

Portland also alleged urgency on the premise that cement had a limited shelf life and that any delay in access to the product for purposes of sale would result in economic loss. Whilst accepting that the law recognised economic loss as a factor for urgency, the court rejected an argument for the granting of ...

Portland also alleged urgency on the premise that cement had a limited shelf life and that any delay in access to the product for purposes of sale would result in economic loss.

Whilst accepting that the law recognised economic loss as a factor for urgency, the court rejected an argument for the granting of relief on this basis on the grounds that the cement had been with Tupelostep and Bak Logistics since September 2012 and that its release should have been sought earlier.

Again, the learned judge fell into error in his assessment of the evidence before him. The Court placed reliance on the date when the consignment was sent to Bak Logistics and fell into the error of regarding that date to be the time at which it should have sought its removal from storage. The court a quo failed to appreciate that the cement was destined for export orders and that any failure on the part of Portland to deliver would cause it harm in the eyes of its external customers.

In addition, the refusal to release export documents would place Portland at cross purposes with the exchange control authorities through its failure to acquit CD1 export forms.

These factors, although adverted to in the application, were not dealt with by the court a quo.

Tupelostep is a peregrinus, a fact which was not disputed before the court a quo. It was contended, on behalf of Portland, that the fact that Tupelostep is resident in South Africa would tend to complicate issues as the suit would have be instituted in that country. It was contended, further, that in the event that it was sued in this country, any judgment obtained as a result would have to be registered there. All this entails a lot of litigation and the remedy of damages then becomes theoretical.

The court a quo, however, felt persuaded that there was an alternative remedy available to Portland and consequently there was no urgency to the application.

The practical difficulties attendant upon such a process for recovery should have been obvious to the court. The failure by the court to appreciate these factors was a clear misdirection warranting the interference by this Court with the exercise of its discretion.

HH722-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBITT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF-GWERU N.O. and THE SHERIFF-MT DARWIN N.O.
Ruled By: MANGOTA J

The legal practitioner who prepared the certificate of urgency…, stated, further, that seeking any redress from the first respondent, which is a foreign company, after execution had occurred, would not only be very difficult, but, would also be a costly exercise. It is not in dispute that the first respondent is a foreign company. ...

HB99-16 : PELLADILLO INVESTMENTS (PVT) LTD vs RWAINDEPI MADONGORERE and DEPUTY SHERIFF GWERU N.O.
Ruled By: TAKUVA J

The applicant contended that this application is urgent in that its valuable property was attached on 23 February 2016 with the removal set for anytime after the 26th day of February 2016. The applicant filed this application on 29 February 2016.

HH225-15 : RITA MARQUE MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: CHATUKUTA J

The applicant submitted that the urgency of the matter arose from the fact that she is of poor health and requires urgent medical attention in the United States. The matter must therefore be heard urgently as she is not aware of how long she will be away. Further, she submitted that she was not ...

The applicant submitted that the urgency of the matter arose from the fact that she is of poor health and requires urgent medical attention in the United States.

The matter must therefore be heard urgently as she is not aware of how long she will be away. Further, she submitted that she was not sure of the outcome of the medical procedures she is to undergo in the United States. In the event that she does not survive the procedure, she will not have enjoyed the benefits of the award made in her favour.

The requirements for urgency are trite.

The applicant must establish imminent danger to existing rights and the possibility of irreparable harm. See Triple C Pigs & Anor v Commissioner-General, ZRA 2007 (1) 27; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) 240 (H).

As stated by GOWORA J in Triple C Pigs & Anor v Commissioner-General, ZRA 2007 (1) 27…, -

“Naturally, every litigant appearing before these courts wishes to have their matter heard on an urgent basis because the longer it takes to obtain relief, the more it seems that justice is being delayed and thus denied. Equally, the courts, in order to ensure delivery of justice, would endeavour to hear a matter as soon as is reasonably practicable. This is not always possible; however, and in order to give effect to the intention of the courts to dispense justice fairly, a distinction is necessarily made between those matters that ought to be heard urgently and those to which some delay would not cause harm which would not be compensated by the relief eventually granted to such litigant. As courts, we therefore have to consider, in the exercise of our discretion, whether or not a litigant wishing the matter to be treated as urgent has shown the infringement or violation of some legitimate interest, and whether or not the infringement of such interest, if not redressed immediately, would not be the cause of harm to the litigant which any relief in the future would render brutum fulmen.

I would, however, in closing, wish to quote, respectfully, the remarks of GILLISPIE J in General Transport & Engineering (Pvt) Ltd & Ors v Zimbank 1998 (2) ZLR 301 (H) at 302. Quoting from his own remarks in Dilwin Investments (Pvt) Ltd v Jopa Enterprise Co Ltd HH116-98, the learned judge stated that:

'A party who brings proceedings urgently gains a considerable advantage over persons whose disputes are being dealt with in the normal course of events. This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants. For instance where, if it is not afforded, the eventual relief will be hollow because of the delay in obtaining it.'”

It is apparent from the above that good cause must be shown for the applicant to dislodge other litigants who are in the queue to catch the express train to the Supreme Court. Would an applicant's personal circumstances, as articulated, suffice as good cause where so many other litigants suffer from life-threatening ailments, some from life-threatening economic hardships? Would the applicant's conjecture that she may not survive the medical procedures be the urgency that is envisaged?

I believe not.

It appears to me that the urgency which is envisaged is the urgency arising from facts of the case itself and the very nature of the relief sought. MAKARAU J…, observed in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) 240 (H)…, that:

“Without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications.”

Each and every person who has filed a matter before these courts has his or her own peculiar personal circumstances which may attract the court's sympathy. However, no matter how compelling the personal circumstances may be, the court is not enjoined in determining the question of urgency to consider them outside the confines of the nature of the case and the relief sought.

Further, the applicant has not established that in the event that the application is not heard urgently, she is likely to suffer irreparable harm. The applicant is able to proceed with this application on the merits after joining the queue. In the event that she succeeds in her application for leave to appeal, and in the appeal itself, she is still entitled to her award.

It is therefore my view that the application is not urgent….,.

It is accordingly ordered that:

1. The application that the matter be heard on an urgent basis be and is hereby dismissed.

2. The application, on the merits, is to proceed as an ordinary court application in terms of the High Court Rules.

HH79-15 : NELSON DZIRUTWE vs DAIRIBOARD ZIMBABWE LIMITED and ADDITIONAL SHERIFF, MUTARE
Ruled By: BHUNU J

The matter is undoubtedly urgent as the applicant and his family are in danger of being thrown into the streets in circumstances where he has an arguable case both in this court and on appeal.

HH120-15 : ROY NYABVURE vs HILDA KIRIMI
Ruled By: TAGU J

In casu, it is not in dispute that both applications are urgent. They are urgent because both applications concern the rights and interests of children. Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian. This is enshrined in the Constitution of Zimbabwe.

HH139-15 : MANLINE FREIGHT (PTY) LTD vs PETER KANENGONI and OTHERS
Ruled By: MAFUSIRE J

This matter was classically a case of commercial urgency as defined in such cases as Silver's Trucks (Pvt) Ltd Anor v Director of Customs and Excise 1999 (1) ZLR 490 (H) and 20th Century Fox Film Corporation Another v Anthony Black Films (Pty) Ltd 1982 (3) SA 582. The court has power to hear an application as a matter ...

CC07-14 : MAYOR LOGISTICS (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MALABA DCJ

An examination of the founding affidavit reveals that the applicant bases its claim for an order that the main application be heard on an urgent basis on the allegation that the respondent wrongly assessed its tax liability. The allegation is that payment of the tax will destroy the applicant's business. The applicant sees in the appeal before the Fiscal Appeal Court, or the constitutional proceedings, a remedy that will secure for it, immediate release from the burden of having to pay tax it claims is not due to the fiscus.

The certificate of urgency gave, as grounds for having the matter treated as urgent, the tax recovery measures the respondent was about to put in place. It also alluded to the need to prevent financial hardships the applicant would suffer as a result of payment of the tax.

Paragraphs 5 and 6 of the certificate of urgency refer to the threatened tax recovery measures and their possible effects:

“5. This collection is imminent and due to happen any time soon and if it happens not only will the outcome of the appeal be rendered academic but the collection may quite literally destroy Applicant's business in such a manner that Applicant will never recover even if the appeal is successful. This is especially so given the huge amounts of money involved.

6. Whilst the need for Respondent to be able to collect taxes efficiently and effectively is acknowledged, it is imperative that this Honourable Court clarify the constitutional issues that are raised by Respondent's arbitrary and summary procedures whose effects on small businesses such as that of Applicant and indeed across Zimbabwe may be ominous and permanent.”…,.

The certificate of urgency is clearly unhelpful. It does not assist the court to decide whether or not to exercise its discretion in favour of the applicant. Not only does the certificate of urgency make bald and unsubstantiated allegations of imminent financial ruin befalling the applicant should the tax recovery measures be effected - some of the statements are false. It is making a false statement to say that by adopting the tax recovery measures the respondent is enforcing “arbitrary and summary procedures”. The respondent is authorized by the law to adopt the tax recovery measures…,.

The question of validity of sections 36 of the Value Added Tax Act [Chapter 23:12] and 69(1) of the Income Tax Act [Chapter 23:06], which is the subject matter of the constitutional proceedings, is to be decided from the point of view of the Constitution. It cannot be determined by having regard to the legality of the conduct of the respondent. The effect on the applicant's business of the tax recovery measures adopted by the respondent would be irrelevant to the consideration of the question whether the statutory provisions are constitutionally valid or not.

HB234-16 : JONATHAN DUBE vs SIYAPHUMELELA COLLECTIVE FARMING CO-OPERATIVE SOCIETY and DEPUTY SHERIFF
Ruled By: TAKUVA J

As regards urgency, the applicant submitted that the application is urgent in that he has 368 cattle on the farm and if he is evicted he does not have another place to put them. He will therefore suffer irreparable prejudice as there is a real risk that the cattle might be lost or stolen. Further, the applicant ...

HH225-11 : KERENZA MUSHATI vs LUISE KUDAKWASHE MUSHATI and SMART MTETWA and REGISTRAR OF DEEDS
Ruled By: MAWADZE J

According to the applicant, this matter is urgent because of the following reasons: (a) That the property in issue is matrimonial residence where the applicant lives with the three children hence if it is clandestinely disposed of irreparable harm and prejudice would be occasioned to the applicant and the children who would be rendered homeless; (b) That the first ...

According to the applicant, this matter is urgent because of the following reasons:

(a) That the property in issue is matrimonial residence where the applicant lives with the three children hence if it is clandestinely disposed of irreparable harm and prejudice would be occasioned to the applicant and the children who would be rendered homeless;

(b) That the first respondent is in a long adulterous relationship and intends to relocate to South Africa, presumably to join his concubine and squander all the cash realized from the sale of the matrimonial house;

(c) That the applicant and the first respondent should agree to sell the matrimonial house and that the sale should be transparent, in the open market, and to the best advantage of the parties;

(d) That if this court allows the sale to go through and the first respondent receives the full purchase price, the applicant would not have any other recourse as the first respondent has no other assets except some vehicles which the first respondent can still easily dispose of….,.

The observation by MAKARAU JP…, in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240…, is poignant:

“I need to digress a little at this stage and observe that it further appears to me that it is not every legal interest that is capable of protection by way of an urgent application no matter how compelling the circumstances. Thus, while the general position is that when the need to act arises, an applicant may approach the court for immediate redress without delay, it is not on every cause of action that such an approach may be made… without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications.”…,.

The first issue which exercised my mind in perusing the papers is whether this court can competently bar the first respondent from disposing of the immovable property registered in his name.

The legal relation of a wife or spouse to property registered in the sole name of the husband (or other spouse) has been dealt with by our courts. See Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 RLR 261 D wherein BEADLE CJ quoted LORD HODSON in National Provincial Bank Ltd v Ainsworth [1965] ALL ER 472…,.:

“Where there is a genuine transfer there is no reason why the wife's personal rights against her husband, which are derived from her status, should enter the field of real property law so as to clog title of an owner.”

See also Muzanenhamo & Anor v Katanga 1991 (1) ZLR 182 (S) and Muganga v Sakupwanya 1996 (1) ZLR 217 (S)….,.

In casu, the applicant has no real right in the matrimonial house, which is presumably registered in her husband's name. The applicant's rights are personal to her husband….,.

It is for the reasons outlined above that I hold the firm view that this matter is not urgent.

HMA37-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE [2] and OBERT MASARAURE vs ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

The first respondent does not dispute the urgency of the matter….,. In my judgment in the original application, I made a positive finding that the respondents were guilty of flagrant abuse of the rights and freedoms of the school children; their schools and their teachers as was set out in that application. On such findings I held that ...

HH180-16 : DR JABULANI KUCHENA vs THE SCIENTIFIC AND INDUSTRIAL RESEARCH AND DEVELOPMENT CENTRE
Ruled By: CHIGUMBA J

The applicant contended that the matter cannot wait because eleven years is a long time and the dispute has taken too long to resolve resulting in his being impoverished….,. The court can hear a matter urgently where the urgency arises out of the need to protect commercial interests. See Silver's Trucks (Pvt) Ltd v Director of Customs ...

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

This is an urgent chamber application in terms of Rule 223A of the High Court Rules. The Rule reads as follows:

“Where a legal practitioner has certified in writing that a matter is urgent, giving reasons for its urgency, the court or judge may direct that the matter should be set down for hearing at anytime, and, additionally, or alternatively, hear the matter at any time or place, and, in such event, Rule 223 shall not apply or shall apply with such modifications as the court or judge may direct.”

My reading of Rule 223A does not seem to entail that a court application should be filed and then an urgent application be filed to get an order setting the other matter down urgently. I hold the view that that particular application which is being sought to be set down should be the one that is certified as urgent in terms of Rule 223 as opposed to Rule 244.

However, this is just a comment on the proper procedure in relation to Rule 223A; it is not an issue between the parties.

The facts of this matter are that on 12 February 2018, the fourteen applicants received a whatsapp message from the headmistress of Regina Mundi High School where their minor children were enrolled and had sat for their Ordinary Level examinations during November last year. In the message, amongst other things, they were advised that their children had been blacklisted as they had cheated in the examination of November 2017 and that consequently their results had been cancelled.

Aggrieved with that decision they then mounted an application for review on 23 February 2018 under case number 619/18 seeking to have the first respondent's decision of cancelling the results set aside.

The gist of the application for review is that the decision to cancel the results was made without the affected parties having been heard and that this violated section 3 of the Administrative of Justice Act [Chapter 10:28]. The other reason for review being that the decision to cancel the results is contrary to the provisions of section 75 of the Constitution of Zimbabwe.

Section 3 of the Administrative Justice Act [Chapter 10:28] deals with the right to fair administrative justice. Section 75 of the Constitution deals with the rights to education.

The basis of this application is to seek that the other application (the application for review) be heard as a matter of urgency as it affects the minor children's rights to proceed to Advanced Level and that should happen during this school term.

The respondents have raised two points in limine in response; they say that;

(i) The matter is not urgent;...,.

Urgency

The first respondent contends that this matter is not urgent since the applicants, from 12 February 2018, only acted on 23 February 2018, to file the application for review, and, later, on 27 February 2018 to file this application.

From 12 February to 27 February it's a period of about fifteen days.

This is a considerable period of time although the applicants say they were waiting for the Zimbabwe School Examinations (ZIMSEC) national challenge on the English Paper 2.

The other problem is that Rule 223A provides for a court application to be certified urgent - not for a separate application to be filed on urgency, in my view.

The problem that immediately arises on the issue of urgency is that if the applicants considered that the application for review should be heard as a matter of urgency, then they should have filed it in terms of Rule 223A, that is, it is the one that should have had a certificate of urgency affixed to it.

To file an ordinary application on 23 February 2018 and then file an urgent application four days down the line gives an impression that the urgency came as an afterthought but that the applicants did not consider the matter urgent at the time of filing.

However, the applicants submit that the application is urgent because of the Advanced Level rush for vacancies.

Indeed, if the matter is resolved timeously the applicants' children might make it into Advanced Level classes this term if the result of the application is in their favour. However, their conduct at the material time did not exhibit urgency. There is some blunder that the applicants committed in not filing an application and exhibiting urgency at the inception.

The point in limine relating to the applicants' tardiness in so far as urgency is concerned is not without merit.

The applicants did not act with urgency when the situation arose. It follows that, by virtue of their own conduct, that application must join the queue with all other applications.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.

The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties' disputed properties.

Although the parties were also quarrelling about the respondent's right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant's favour. That issue consequently falls away.

The respondent has, in turn, abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.

CHOICE OF LAW

Although the parties were married under Customary Law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of General Law; section 3(b) of the Customary Law and Local Courts Act [Chapter 7: 05].

It is convenient that their dispute be regulated and determined in terms of General Law because of their sophisticated way of life and ownership of immovable private property.

As the concept of private ownership of immovable property is unknown at Customary Law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than General Law. Thus, the appropriate applicable law in this case is the General Law. See Mandava v Chasekwa 2008 (1) ZLR 300…,.

BRIEF SUMMARY OF THE CASE

The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest, Tendai Dominique Chiwenga, is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years, and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.

During happier times, the parties resided at their matrimonial home situate at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage, the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects, and other paraphernalia.

It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as 'gupuro'.

In her papers before this Court, and in paragraph 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant's wife. The divorce issue therefore appears not to have been resolved.

The appellant has nevertheless now issued summons against her in the court a quo under case number HC9837/19 claiming custody of the three minor children in terms of section 4 of the Guardianship of Minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage.

The current proceedings and the parties' relationship are severely strained, acrimonious, and discordant. This is mainly because of the respondent's arrest on multiple charges of attempted murder of the appellant, fraud, money laundering, and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning three (3) weeks, from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession, and administration of her personal property and effects.

At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent's arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects, and other paraphernalia.

His conduct in this respect was perfectly lawful and undisputed at the material time.

On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison, on bail, she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home.

The same scenario played out when she sought access to Orchid Gardens which was also guarded by State security guards. They also denied her access to the premises.

She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.

THE RESPONDENT'S CLAIM A QUO

Under the circumstances, the respondent submits that she had no option but to approach the appropriate court, on an urgent basis, for relief. To that end, she lodged an urgent application in the court a quo for a 'provisional spoliation order' directing the appellant to grant her the following interim relief on a prima facie basis pending the return date for a final order:

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the three (3) minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff, with the assistance of the police, to execute the court a quo's order forthwith.

In the final order, the respondent sought the following relief:

9. That the appellant be interdicted and restrained from interfering with the respondent's use and enjoyment of the matrimonial home and her business premises at Orchid Gardens pending the conclusion of the matrimonial proceedings under case number HC9837/19.

10. That the appellant be restrained from removing the three (3) minor children of the marriage from the applicant's custody.

11. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent's complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children, and property.

THE APPELLANT'S DEFENCE A QUO

The appellant objected to the respondent's claim that the matter was urgent.

He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children's Court which is specifically conferred with the jurisdiction in terms of section 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart.

He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison.

The appellant denied having given the guards at the matrimonial home, and Orchid Gardens, any orders to deny the respondent access to the premises.

His submission, to the effect that he had no control over the guards, was not rebutted.

Placing reliance on the South African case of Fraser v Children's Court, Pretoria North 1997 (2) SA 261, the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children.

It was his further submission that throughout the whole episode, he acted lawfully as a diligent pater familias. At paragraph 3(c) of his opposing affidavit, in the court a quo, the appellant makes the valid point that, as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred, further, that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient.

THE COURT A QUO'S FINDINGS AND DETERMINATION

On the basis of the above summation of evidence and arguments, the court a quo found that:

(a) The matter was urgent mainly because of the welfare of the minor children....,.

Whether the court a quo correctly determined that the matter was urgent

As previously stated, the court a quo found that the application was urgent on the basis that it involved the welfare of minor children...,.

It is common knowledge that minor children are a vulnerable class of persons under the special care of the High Court as their upper guardian. The same applies to spoliation, a remedy designed to avert self-help in a democratic civilized society. The remedy forbids the law of the jungle where survival of the fittest reigns supreme. Thus, the courts will quickly come to the aide of the vulnerable and the weak to restore custody and possession where one is unlawfully deprived of the same by the strong and valiant.

In this case, the respondent approached the court a quo complaining that she had been unlawfully deprived of the custody of her children and possession of her property by her powerful husband abusing State power. That being the case, the court a quo cannot be faulted for granting her application for an urgent hearing. Doing otherwise would have amounted to abdicating its duty as the upper guardian of minor children and protector of the weak and vulnerable....,.

The court therefore finds no merit in the appellant's complaint that the matter was improperly heard as an urgent matter.

HH818-15 : NAOMI MUKUNDU vs LAWRENCE CHIGUMADZI and TAKUNDA GUMBO and THE MASTER OF THE HIGH COURT
Ruled By: UCHENA J

The applicant is the maternal grandmother of the two minor children, Laura Edna Chigumadzi born on 4 August 1999 and Lawrence Takudzwa Chigumadzi born on 28 September 2000, for whom she sought an order granting her their custody and guardianship.The first respondent is the biological father of the minor children. ...

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons ...

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.

After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons for doing so would follow. What follows hereunder are those reasons.

THE FACTS

During his lifetime, Genius Kadungure was a colourful and prominent businessman with business interests in Zimbabwe, Botswana, and South Africa. He died tragically in a motor vehicle accident on 8 November 2020 at the age of 36.

At his funeral, the appellant, who is an administrator of deceased estates at Regional Executors & Trust (Pvt) Ltd, approached the first, second, and third respondents brandishing an unsigned “Will” allegedly prepared by herself on the instructions of the deceased a few weeks before he died.

The first and third respondents are the sisters of the deceased while the second respondent is his father. They shall be referred to either as the deceased's relatives or as the respondents.

The appellant persuaded the relatives of the deceased to accept the unsigned document as the last will and testament of the deceased. She also persuaded them to accept her appointment as the executrix of the deceased estate.

In due course, and following a meeting convened by the Master of the High Court, who is the fourth respondent herein, the appellant was appointed as the executrix. She was issued with Letters of Administration on 1 December 2020.

Meanwhile, the unsigned “will” was also accepted and registered by the fourth respondent.

The deceased estate of the late Genius Kadungure was then to be administered and wound up in terms of that document.

The appellant hit the ground running as she immediately entertained a claim of a Lamborghini Aventador Roadster Motor Vehicle, registration number ZM03, belonging to the estate, from one Nomatter Zinyengere.

I mention, in passing, that, that name does not appear anywhere in the unsigned will. In fact, that motor vehicle, which for some unclear reason is the only property specifically mentioned in that document, was bequeathed to one “Kit Kat”.

Without reference to the Master of the High Court, and without submitting any liquidation and distribution account for approval by the Master, the appellant sent what she called the “first interim liquidation and distribution account” to Nomatter Zinyengere's lawyers in which she demanded a payment of $48,230 from him in return for the release of the Lamborghini motor vehicle.

That interim account only contained the Lamborghini motor vehicle and no other property of the deceased. It also did not take into account any liabilities of the estate.

Nomatter Zinyengere must have paid the appellant what she demanded, because, by letter dated 27 January 2021, addressed to one Michael Mubaiwa at the deceased's mansion in Domboshava, the appellant directed that the motor vehicle be handed over to his lawyer.

It is then that the deceased's relatives sought legal advice.

As up to then, they had not been furnished with a copy of the Will, they unsuccessfully requested one from the appellant, including the minutes of the meeting held on 25 November 2020 at the Master's Office. They only got copies from the fourth respondent.

PROCEEDINGS IN THE COURT A QUO

The respondents brought an urgent application before the court a quo for interim relief interdicting the appellant from dealing with or administering the estate. On the return date, they seek a review of the fourth respondent's decision to accept the unsigned document as the Will of the deceased. They also seek the reversal of the appellant's appointment as the executrix testamentary of the estate.

The respondents case was that the appellant used undue influence to persuade them to accept the unsigned document as the deceased's will and to accept her appointment as the executrix. She had dissuaded them from seeking legal counsel regarding the will. She had claimed to be their lawyer who would handle the estate when she is not even a lawyer.

According to the respondents, they reluctantly worked with the appellant even though they had questions about the Will.

Their fears were confirmed when the appellant had, with indecent haste, proceeded to attempt to dispose of the Lamborghini motor vehicle during the lockdown period without following due process. The whole exercise was suspicious given that there was no detailed inventory of the estate property and no distribution account was submitted and approved by the Master of the High Court.

The respondents also complained about the manner in which the appellant was handling the estate in Botswana.

To them, the matter was urgent as the appellant had to be stopped in her tracks before causing more damage, especially as there are trucks in South Africa belonging to the estate which were in danger of disappearing if the issue of executorship remained unresolved.

In opposing the application, the appellant's case was that the matter was not urgent because the facts complained of occurred four months earlier. Her contention was that the respondents voluntarily consented to the Master's decision to accept the unsigned document as the deceased's will knowing it did not meet the requirements of the Will's Act [Chapter 6:06]. The appellant insisted that the respondents also consented to her appointment as the executrix of the estate.

In her view, the requirements of an interim interdict were not met.

Regarding the issue of the Lamborghini motor vehicle, while admitting that she had initially approved its release, the appellant contended, that, she later realized that she had not advertised the interim distribution account. For that reason, she had rescinded her decision to release the motor vehicle. The appellant admitted, further, that, her decision to do so was also informed by the reprimand she got from the fourth respondent.

It was the appellant's contention that the application was without merit. She sought its dismissal with costs.

The court a quo acknowledged, that, the respondents should have filed a separate application for review. It however took the view that the matter was so urgent that the court had to dispense with most of the formalities provided for in the Rules. This was so because of the then prevailing Covid 19 lockdown and Practice Direction Number 4 of 2021 which proscribed the filing of new cases and only permitted the filing of urgent cases.

The court a quo's view was that urgency stemmed from the appellant's rush to conclude part of the administration of the estate. In addition, she had advertised the estate in newspapers which action amounted to legal processes with legal consequences in the event of failure to act upon them.

Given the nature of the document being used to administer the estate, its emergence at the funeral, and the circumstances of its acceptance raised a red flag; the court a quo found that the respondents had a cause of action against the appellant. It found that, by her own admission, the appellant had tried to jump the gun in allowing the release of the Lamborghini motor vehicle.

Accordingly, the risk of irreparable harm was palpable and the balance of convenience favoured the beneficiaries. The court a quo then granted interim relief aforesaid.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo. She noted this appeal on the following grounds:

1. The court a quo erred in determining that the first to third respondents cause was deserving of an urgent hearing when the facts actuating the first to third respondents complaint had subsisted for well over 4 months.

2. The court a quo also erred in granting the first to third respondents an interdict in circumstances where such respondents had other satisfactory remedies available to them in terms of section 8 of the Wills Act and section 30 of the Administration of Estates Act.

3. The court a quo further erred in granting audience to a party which had, by express words and direct acts, accepted the appointment of the appellant and decision of the fourth respondent. In consequence, the court a quo erred in exercising jurisdiction in a matter redolent with material disputes of fact not resoluble on the papers.

4. The court a quo grossly misdirected itself in holding, that, it had the jurisdiction to bar the appellant from the administration of the estate of the late Genius Kadungure in South Africa when the court a quo has no jurisdiction over the South African assets of the deceased.

5. The court a quo erred in finding that the appellant used undue influence to compel the first to third respondents to accept the deceased's null absent any evidence disputed by the appellant. (sic)

6. On a point of law, the court a quo erred in its formulation of the order it handed down on the 5th of March 2021. In the court a quo's reasoning, it postulates the granting of interim relief. However, the order handed down is final in nature.

On the foregoing grounds, the appellant moved for the success of the appeal with costs and dismissal of the application a quo with costs....,.

ISSUES FOR DETERMINATION

Although there are six grounds of appeal, only two (2) issues commend themselves for determination in this appeal. They are:

1. Whether the court a quo erred in finding that the application was urgent....,.

The question of urgency cannot possibly be a live issue on appeal. This is so because the judge a quo was imbued with judicial discretion whether to hear the matter as urgent or not. Having exercised her discretion in favour of the respondents, given the appellant's conduct of disposing of the property of the estate without following the proper liquidation process, that became water under the bridge.

Without satisfying the requirements for interference, on appeal, with the exercise of discretion, the appellant cannot pursue the question of urgency before this Court.

Happily, counsel for the appellant did not motivate that issue at all before this Court.

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.

The second respondent did not file a notice of opposition, and, as a result, the court took it that he will abide by the decision rendered.

The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review.

Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction Number 4, under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives.

Let me hasten to say, that, this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent chamber application.

The first to the third applicants are, respectively, sister, father, and sister of one Genius Kadungure who passed away on the 8th of November 2020 (hereinafter the deceased).

The factual background to the application can be summarised as follows:

The deceased was a well to do person who had business interests in Zimbabwe, Botswana, and South Africa. The first respondent approached the family of the applicants, at the funeral, with a document that she purported was a Will of the deceased though it was not signed. Using undue influence, the applicants accepted the document as the last will and testament of the deceased and recommended the appointment of the first respondent as the executrix of the estate of the deceased.

The first respondent dissuaded the applicants from seeking legal advice indicating that she was also their lawyer.

The second respondent accepted the document as the last Will and testament of the deceased in terms of the Wills Act and also appointed the first respondent as the executor. This was followed by the issuance of Letters of Administration to the first respondent dated the first of December 2020.

The applicants reluctantly worked with the first respondent though they had questions over the will - a copy of which was never furnished to them.

After seeking legal advice, they approached the first respondent who refused to furnish them with a copy of the Will and minutes of a meeting held on the 25th of November 2020. They only managed to obtain copies from the second respondent.

To note is that the Will, which was drafted by the first respondent, confers executorship on her.

She, during the lock down period, attended to disposal of the deceased's Lamborghini motor vehicle in what they term 'hazy' circumstances. This was despite the fact, that, there was no detailed inventory and there was no confirmed distribution account.

FNB Bank in Botswana, where the deceased held an account for his company called Quick Gases (Pvt) Ltd, had extended a loan that had been unpaid since the demise of the deceased. He also left assets in South Africa, in the form of trucks, that were in danger of disappearing if the issues of executorship remained unresolved.

The first respondent had, on the 5th of February 2021, advertised an interim distribution account stating, falsely, that such was lying for inspection at the offices of the second respondent. The latter admonished the first respondent over her false claim.

There is litigation in Botswana over the legitimacy of the first respondent's executorship.

The applicants seek an interim interdict prohibiting any administration of the deceased's estate pending the return date upon which a review of the second respondent's decision to appoint the first applicant as the executrix, and to accept the document in question, will be sought.

The grounds for review are framed as illegality/absence of jurisdiction; fraud; speculation; malpractice; and gross irregularity.

The applicants are further concerned by the following acts which cast the authenticity of the Will in doubt:

(i) The haste with which the first respondent seeks to dispose of the Lamborghini without following due process;

(ii) The invitation by the first respondent for members of the public to inspect an estate account when she has already authorised disposal of the said vehicle;

(iii) The Will makes reference to some persons without stating their actual identities;

(iv) The vehicle arrived in Zimbabwe around the 30th of September 2020, and, its inconceivable that the deceased would have a Will drafted bequeathing it to a third party 23 days after its arrival;

(v) The deceased had a large fleet of vehicles and it is surprising that only the Lamborghini was mentioned in the will;

(vi) The first respondent falsely claimed that she is an attorney and she never wanted to avail the Will to the applicants.

The Will is therefore fake and the estate of the deceased should proceed under intestacy.

The matter is urgent and cannot wait because the applicants are the surviving blood relatives of the deceased and have a prima facie right to protect their interests.

The acceptance of the Will is a legal nullity and there is need to stop the first respondent in her tracks. She is already in the process of disposing of some assets of the deceased estate during the lock down period, more specifically, a Lamborghini motor vehicle, using a distribution account that was never availed nor approved by the second respondent.

Quick Gases (Pvt) Ltd, in which the deceased was the sole director, is in danger of being liquidated after F.N.B Bank in Botswana froze the company's bank account.

The applicants have been given up to the 31st of March 2021 to attend to issues relating to the appointment of the first applicant as executrix.

The first applicant is dissipating the deceased's estate to the permanent and irreparable harm of the applicants in circumstances when her appointment as executrix is a nullity; she has not furnished security to the second respondent for due administration of the estate; and she has not furnished the second respondent with a comprehensive inventory.

Waiting to prosecute a review application during the lockdown period without knowing when it will end will prejudice the applicants who are at risk of losing many assets.

The first respondent continues to take the law into her own hands to the detriment of the applicants.

There is no other alternative remedy to protect the rights of the applicants.

There is real risk that the first respondent, in the absence of a court order, will continue to alienate and dispose of the deceased's assets, and, accordingly, only an interdict will protect the rights of the applicants pending the return date.

The second and third applicants deposed to supporting affidavits in support of the first applicant's averments.

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The application is hereby granted.

2. The provisional order granted in this matter is hereby confirmed.

3. It be and is hereby declared that:

3.1 The document registered with the 2nd respondent on 25 November 2020 under DR. No.1771/20 as the will of the later Genius Kadungure ('the deceased') (who died on 8 November 2020) is null and void; and

3.2 The deceased died intestate.

4. The decision of the 2nd respondent, to register and accept the aforesaid document as the last will for purposes of administration of the estate of the deceased in terms of section 8(5) of the Wills Act (6:06) be and is hereby set aside.

5. The 2nd respondent's appointment of the 1st respondent, on 2 December 2020, as the testamentary executrix of the estate of the deceased, and all acts done by the 1st respondent (personally or by other persons at her direction) under and by virtue of such appointment be and are hereby declared null and void.

6. The letters of administration issued by the 2nd respondent, on 2 December 2020, in favour of the 1st respondent, under DR No.1771/20, appointing her as testamentary executrix, be and are hereby revoked.

7. The 2nd respondent shall convene another meeting to appoint an executor of the estate of the deceased which meeting shall be presided over by an official other than the official who presided over the meeting of the 25th of November 2020 or any of the officials who previously dealt with the estate of the deceased; and

8. The 1st respondent shall bear costs of suit on attorney-client scale (in the event that she opposes the application).

INTERIM RELIEF GRANTED

Pending the return date, the applicants are hereby granted the following interim relief:

1. Pending the return date, the 1st respondent is hereby interdicted from, in any way, administering, or dealing in the estate of Genius Kadungure ('the deceased') in Zimbabwe, Botswana or South Africa; and

2. The 2nd respondent, or any other person acting on his behalf, be and is hereby interdicted from (without the leave of this court) accepting for filing any document by, or acceding to any request from, the 1st respondent under DR. No.1771/20 save and except for the purposes of relinquishing the letters of administration issued hereunder.”

The first respondent strenuously opposes the application and raises several points in limine as follows:

(1) The matter is not urgent because the facts complained of have existed for 4 months and 8 days. The applicants voluntarily consented to the decision by the second respondent to accept a document that did not meet all the formalities of a will on the 25th of November 2020. In terms of the Wills Act, they had 30 days within which to appeal against the decision....,.

The test for what constitutes urgency has been set out in a plethora of cases with the oft cited case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H) being the locus classicus.

In my view, the matter placed before the court is urgent regard especially being had to the events that are taking place, more specifically, the rush to conclude administration of part of the estate of the deceased and the placing of an advert for an interim distribution account in both the Government Gazette and a newspaper.

The adverts are legal processes and failure to act on them has legal consequences.

Whilst it is accepted, that, in terms of section 8(6) of the Wills Act [Chapter 6:06] any person aggrieved by the acceptance of a document that does not meet all the formalities of a will has 30 days within which to appeal, what the applicants seek is a review which has different considerations from an appeal.

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

The applicant and the third respondent divorced on 16 January 2014 in Case No. HC7328/13.

In terms of a consent paper concluded on 14 November 2013, which became part of the divorce order of 16 January 2014, the applicant and the third respondent agreed to give their matrimonial home, Stand No.17074 Giraffe Crescent, Borrowdale West, Harare to their two minor children in equal shares.

Paragraph E.5 of the Consent Paper stated as follows:

“E. Division of Matrimonial Property

5. Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be awarded to the two minor children in equal shares. The property shall be transferred and registered in the said minor children's names within one year of the order. The parties shall sign all relevant papers to effect transfer to the minor children, failing which, the Sheriff Harare shall sign all such papers as if it were the plaintiff and defendant. The plaintiff shall pay the cost of the transfer. In addition, the defendant shall exercise the rights (usufruct) of use and occupation until she dies or remarries whichever occurs sooner.”

Stand No.17074 Giraffe Crescent was not transferred and registered in the children's names within one year, contrary to what was ordered by the court.

The court was not told of any steps which were taken by the applicant and the third respondent towards complying with the Divorce Order.

It also appears, that, the Sheriff, who was supposed to sign all the papers, for purposes of transfer and registration, if the applicant and the third respondent failed to do so, was never approached.

The property thus remained in the third respondent's name, in contravention of the divorce order.

It is common cause, that, in August, 2015, the above property was attached by the first respondent in order to satisfy a debt by the second respondent where the third respondent had signed as surety.

The applicant says she became aware of the attachment on 21 August 2015. On 2 September 2015 the applicant filed an urgent chamber application for stay of execution of the writ of attachment.

There was a delay of more than 10 days from the date of the attachment to the date of filing of the urgent application. That delay is not explained, contrary to case authorities which indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should herself treat the matter urgently.

The first respondent opposed the urgent application.

It said the applicant had no locus standi; that she should have instituted interpleader proceedings; and that the application is not urgent....,.

As regards urgency, I have already criticised the applicant for not explaining her delay in approaching the court after the attachment.

In addition to that, the first respondent argued, that, the applicant was aware that the first respondent was searching for assets to attach for the same debt as far back as December 2014 because the first respondent once attached her movables but released them after she proved that the goods were hers and not the second respondent's.

The first respondent submitted, that, her cry now was a matter of self-created urgency.

There is merit in the first respondent's argument on the lack of urgency of the application. However, in view of the minor children who have an interest in this matter, I have decided to exercise my discretion in favour of the applicant and treat the application as urgent.

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:“FINAL ORDER1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave ...

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:

“FINAL ORDER

1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st Respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right to freedom of religion protected by section 60 of the constitution of Zimbabwe.

2. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right not to be discriminated against on account of religion, such right being protected by section 56 of the Constitution of Zimbabwe.

3. That, the minor, X, be and is hereby allowed to remain a student of the 1st respondent while at the same time keeping his beard in accordance with the Islamic religion.

4. The respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF:

Pending determination of this matter, the Applicant is granted the following relief:

It is ordered that:

1. That, the 1st, 2nd, and 3rd respondents be and are hereby interdicted from barring X from entering the premises of the 1st respondent for purposes of continuing with his Upper Sixth Form studies notwithstanding the fact that the aforesaid Yusuf Ismail is not shaving his beard.

2. That, the 1st, 2nd and 3rd respondents be and are hereby interdicted from insisting, directly or indirectly, that X shaves his beard as a pre-condition to him continuing with his Upper Sixth Form studies at the 1st respondent.

3. That, the respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.”

The basic facts leading to this application were that:

The applicant enrolled his son, X (hereinafter referred to as the minor), at St Johns College in 2013. At the time of enrolment, the applicant signed a contractual document 'Acceptance of Entry' in which were stated the conditions for the acceptance of the minor at St. Johns College. Amongst the terms and conditions that the applicant unequivocally accepted were clauses 2 and 3 which stated that:

“2. That, the student will be bound by all rules and requirements as laid down by the college from time to time in both academic and extra-curricular activities.

3. That, in particular, the student will be bound by the St. Johns College Code of Conduct as amended from time to time.”

The Code of Conduct stipulated the conduct that was expected from all the students without discrimination.

The particular aspect that led to this case pertains to the requirement that all students be cleanly shaven.

At the time of enrolling at the college, the minor had not yet developed a beard. However, towards the end of 2018, he developed a beard.

It is common cause, as between the parties, that, in terms of the Code of Conduct, the minor was expected to shave the beard.

In recognition of this regulation, and as the minor had already been advised to be cleanly shaven in terms of the regulation if he was to continue at the school, on the 1st of October 2018 the applicant wrote a letter to first respondent requesting that the minor be allowed to grow his beard. That letter stated, inter alia, that:

“This letter serves as a humble request to allow my son, X (L6S), to keep his beard. It is imperative that he does not shave his beard for religious purposes. X leads congregational prayers at the mosque, and, it is not permissible for those who lead the prayer to remove their beards.”

After acknowledging the valuable role played by the Regulations, in moulding boys into responsible men, the applicant proceeded to say:

“Allowing Yusuf to keep his beard will permit him to practice his faith without it interrupting his education.”

On the 3rd of October, the first respondent responded to the request with a clear NO in, inter alia, these words:

“Please note, that, we no longer grant exemptions to these requests under any circumstances, and, hence, your appeal for X to keep facial hair on religious grounds is denied. He has to shave and follow our regulations to the letter as outlined in the code of conduct.”

Despite what should have been a clear response, on the 28th of December 2018, the applicant, through his legal practitioner, wrote to the first respondent inquiring if the first respondent would carry out what he termed its threat to bar the minor from attending school if he did not shave his beard.

That letter did not yield a positive response as the first respondent indicated it was yet to refer the applicant's letter to its legal practitioners for a response as the college had been closed as from 14 December and had just opened and so was yet to consult its legal practitioners.

As the 2019 first school term drew closer, the applicant paid school fees for the minor but the school would not allow the minor to attend school without complying with the requirement to be cleanly shaven.

As a consequence, the applicant launched this application.

It is pertinent to note, that, the fact that the applicant and the minor are Muslims is common cause. In this application, the applicant emphasised the fact, that, there is a family tradition in their family to be an Imam. In this regard, the minor is studying to be an Imam hence he is now leading a congregation in prayers. It is in that respect that he said the minor has to strictly adhere to the Islamic requirement for male persons not to shave the beard. The applicant alleged, that, by refusing to allow the minor to attend school without shaving, the school is effectively asking the minor to abandon his religion.

He also alluded to the infringement of the minor's freedom to religion, protected by section 60 of the Constitution, by ordering him to shave his beard before he can be allowed into the school premises.

Other sections he said were infringed include sections 56 and 75 of the Constitution.

The first to third respondents opposed the application.

A point in limine on the issue of urgency was raised and I decided it in the applicant' favour as I was of the view, that, though the applicant could easily have approached court in October 2018 when the school made it clear that the minor had to adhere to the school's Code of Conduct and that no exemption would be granted, as this involved the rights of a child, it ought to be dealt with expeditiously so that an appropriate decision is made on the future of the child's education.

HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA
Ruled By: TSANGA J

This urgent application turned upon the issue of whether an order of maintenance from the Magistrate Court, that is currently pending review, can be varied, even provisionally, by the High Court through an urgent chamber application.

My immediate legal view was that this was not possible.

However, since the parties were self-actors, and since on the affidavit of urgency, the matter involved a young child who had been sent home for non-payment of fees, as upper guardian, I did set down the matter down for hearing as an urgent application so as to determine more fully the circumstances and nature of the urgency expressed in the affidavit.

However, having heard the parties on the circumstances of the urgency, I declined to grant the order sought by the applicant and dismissed the matter as not urgent.

This judgment captures the full reasons for so holding.

From the applicant's founding affidavit, the basis of her claim was that a child whom she has with the respondent, who is doing Grade One at Cornway College, had been thrown out of school for outstanding payment of fees. Under an existing Maintenance Order, from 2010, the respondent has been paying $150 a month as maintenance and $670 a term as fees. The applicant applied for a variation upward in February 2014 from $150 to $600 for child's upkeep and from $670 to $1,550 for school fees.

She obtained a default judgment in Bulawayo for these amounts on 24 April 2014.

However, on May 19, 2014 (ruling stamped 9 June 2014), this default judgment was rescinded and the Maintenance Court ordered that the maintenance should revert back to $150 for upkeep and $670 for the school fees. The respondent, though, was also ordered to repay a sum of $248 constituting various expenses for settling the child at Cornway College.

The applicant's affidavit of urgency, as well as her founding affidavit, indicated that she had brought the proceedings of the Magistrate Court for review under HC4663/14, which matter was still pending.

The basis of the urgent application brought before me was the insufficiency of the maintenance amount to meet the child's costs and the fact that the child had been thrown out of the school for owing the sum of $1,021 in fees.

The applicant's contention was that the sum of US$670 represented the fees for when the minor was still at pre-school.

What was gleaned from a letter attached from the school, regarding the amount owing to Cornway, where the child is now doing Grade One, was that of the sum owing, $571, was a balance from the 1st term. The fees for the second term was stated as $1,100 and US$650 had been paid thus bringing the total amount outstanding to $1,021.

The applicant's averment was that the respondent, who owns KWMM Investments (Pvt) Ltd, and is said to operate a fleet of 16 haulage trucks, is able to pay. She therefore sought an order couched as follows:

"TERMS OF FINAL ORDER SOUGHT

(i) That you show cause to this Honourable court why a final order should not be made in the following terms.

(ii) That pending the finalisation of case HC4663/14, Respondent be ordered to maintain the minor in terms of Annexure C.

(iii) That Respondent bears the cost of this application.

INTERIM RELIEF GRANTED

Pending determination of this matter there is granted the following relief:

(i) That Respondent is ordered to pay all the school arrears forthwith and to provide $500 for the upkeep of the minor child per month.

(ii) That this provisional order be served upon the Respondent by Sheriff."

There were three primary reasons for my rejecting the matter as urgent once the urgency had been ventilated and the circumstances surrounding it:

(i) The first was that the order of maintenance granted at $150 per month for upkeep and $670 for fees per month remains extant.

(ii) Secondly, the review of the matter by the magistrate, ordering that the maintenance revert to the original amount stated above, is still pending.

(iii) Thirdly, the applicable Constitutional provisions call into play the participation of both parents towards their children's needs. As such, where an order already exists that governs a particular parent's contribution, a matter cannot be rendered urgent by unilaterally upping that party's contribution and subsequently seeking to have that endorsed, when not honoured, by way of an urgent application.

The urgency, under such circumstances, becomes self-created.

HH446-15 : TELECEL ZIMBABWE (PVT) LTD vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) and MINISTER OF INFORMATION TECHNOLOGY, POSTAL AND COURIER SERVICES N.O. and OTHERS
Ruled By: MATHONSI J

After hearing arguments from counsel on 7 May 2015, I granted the provisional order and said the reasons would follow. These are they.

This matter has got a chequered history indeed.

The applicant is an incorporation which provides national cellular telecommunications service in Zimbabwe, among other services, by virtue of a licence issued in terms of the Postal and Telecommunications Act [Chapter 12:05] (the Act) by the first respondent (the Postal and Telecommunications Regulatory Authority), which is the statutory authority established in terms of the Postal and Telecommunications Act to superintend the licencing and regulation of telecommunication service in this country under the watchful eye of the second respondent (the Minister of Information, Technology, Postal and Courier Services), the Minister charged with the administration of the Postal and Telecommunications Act.

The applicant was initially issued with a national cellular telecommunications licence in May 1998. It was issued with a revised licence on 26 June 2002, a licence which, in terms of its clause 4 was, valid for 15 years from the date of its signing. That licence contains the terms and conditions under which the applicant is required to provide the service.

I have said that the relationship between the parties has had its fair share of problems.

At some point, because of the squabbles relating to the applicant's shareholding, which the regulatory authority insisted did not comply with the country's indigenisation laws, and, more importantly, with the terms of the licence, the authority cancelled the licence on 9 August 2007.

The applicant appealed that cancellation to the responsible Minister, in terms of section 96 of the Postal and Telecommunications Act, on 10 August 2007, and approached this court by urgent application in HC4301/07 for interim relief. This court, per MUSAKWA J, issued a consent order on 15 August 2007 to wit:

“It is hereby ordered that:

1. Pending the determination of the appeal by the second respondent, the order cancelling the licence and directing the applicant to switch off its telecommunications issued by the first respondent be and is hereby suspended.

2. There is no order as to costs.”

Just as well the applicant had the presence of mind to seek the suspension of the cancellation order, because it was not until 29 April 2010 that the Minister finalised the appeal - almost three (3) years later.

The Minister's decision, communicated by the Secretary for Transport, Communications and Infrastructural Development, on that date, is helpful:

“RE: TELECEL ZIMBABWE LICENCE

Your minute AM/mn/342/10 dated 28 April 2010 refers. The Ministry holds the view, that, cancelling Telecel Zimbabwe's licence is not tenable vis-a-vis the thousands of subscribers the mobile operator now has and the many negative messages such action would convey to potential investors, both in the sector and across the whole economy.

Thus, at a meeting between Honourable Minister N T Goche (MP) and Telecel's chief, Mr Kia Uebech, on 1 April 2010, Government's requirement that Telecel Zimbabwe reverts back to its original 60:40 position in respect of its local: foreign shareholding was stated/indicated.

Telecel undertook to address this challenge.

Clearly, it will be difficult for the Government to support the renewal of the licence come 2013 should Telecel fail to comply with Government's pre-condition. In our view, the ball is now in Telecel Zimbabwe's court.”

That way, the licence was reinstated on the understanding, that, the shareholding would be regularised to meet Government requirements.

Since 2010, the parties have been engaged in dialogue over the shareholding which went on and on with no end in sight. A lot has happened, including an agreement signed by the parties on 6 August 2013.

However, not happy with what the applicant had done, the first respondent, again, cancelled the applicant's licence, on 28 April 2015, on the basis that the applicant had failed to comply with the Postal and Telecommunications Act.

It then set about issuing a raft of provisions in its final regulatory order which reads:

“11. REGULATORY ORDER

HAVING REGARD to the provisions of the Act, Telecel licence conditions, persistent compliance default, all relevant evidence, and the submissions made by Telecel Zimbabwe Limited, POTRAZ hereby makes the following order in the exercise of its power under the Act.

11.1 Telecel's licence to provide National Cellular Telecommunications Service is hereby cancelled with effect from the date of this order.

11.2 Telecel immediately notifies its subscribers and relevant stakeholders of the termination of its licence upon receipt of this order.

11.3 Telecel ceases to operate its cellular telecommunications network and ceases to offer any communication service upon receipt of this order.

The effect of the cancellation is as follows:

(a) Radio frequency spectrum allocated to Telecel for the provision of cellular telecommunication services are hereby withdrawn with effect from the date of receipt of this order (see Annex 01 for the detailed spectrum information).

(b) Radio frequency spectrum allocated to Telecel for the establishment of Microwave Fixed Links in 7, 8, 13, 18, 22 and 23 GHz bands are hereby withdrawn with effect from the date of receipt of this order.

(c) Radio frequency spectrum allocated to Telecel for the establishment of a C-band VSAT Earth Station are hereby withdrawn with effect from the date of receipt of this order.

(d) The number resources used by Telecel Zimbabwe Limited to offer telecommunication services are hereby withdrawn with effect from the date of this order.

12. SPECIAL DISPENSATION TO TELECEL

NOTWITHSTANDING the provisions of subparagraphs 11.2 and 11.3 above, however, and being mindful of the disruptive effect of an immediate cessation of operations upon the subscribers and other stakeholders of Telecel, POTRAZ hereby grants a special dispensation to Telecel for it to continue with its operations for a period of thirty (30) days from the date of receipt of this order. The purpose of the dispensation will be to afford Telecel an opportunity, among other things, to:

12.1 Facilitate the migration of subscribers from Telecel to other licenced telecommunications operators.

12.2 Notify its employees and agents of the cancellation of its operating licence.

12.3 Notify its stakeholders in the mobile financial services sector of the cancellation of its licence.

12.4 Notify the general public of the cancellation of its licence.

12.5 Begin the process of decommissioning its telecommunications equipment, which process has to be completed within ninety (90) days calculated from the date of receipt of this order.”

Hence, on the stroke of the pen, and by Regulatory decree, scores of employees had lost employment and a number of subscribers had lost a service, never mind other stakeholders and never mind the labour laws of this country dealing with notice of termination of employment.

The applicant has now come to court, on an urgent basis, seeking the following relief:

“TERMS OF FINAL ORDER SOUGHT

That you shall show cause to this Honourable Court why a final order should not be made in the following terms:

1. That, pending determination of the finalisation of the appeal by the applicant pursuant to the provisions of section 96 of the Posts and Telecommunications Act [Chapter 12:05] that Regulatory Order No.1 of 2015 and special licence and concomitant dispensations imposed by the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) be and are hereby suspended.

2. That, pending finality to the appeal process, as provided by the Posts and Telecommunications Act [Chapter 12:05] applicant shall not dispose of any movable assets or infrastructure without notice to the 1st, second, and third respondents.

3. That, there be no order as to costs.

INTERIM RELIEF (GRANTED)

Pending determination of this matter, the applicant is granted the following relief:

(a) That, first to third respondents be and are hereby interdicted from in any way of (sic) interfering with the normal business activities of the applicant pursuant to the provision of its telecommunication services and related business activities to the public and its subscribers in Zimbabwe.

(b) The dispensation time periods mentioned in Regulatory Order No.1 of 2015 and the cancellation of applicant's licence be and are hereby suspended until such time as there has been a final determination of (sic) a final order sought in terms of this application.”

In its founding affidavit, deposed to by Angeline Vere, its General Manager, the applicant states, that, after all its attempts to reduce its foreign shareholding to a level acceptable to the first respondent were rejected by the latter, which retains the exclusive right of approval in terms of clause 12 of the licence, the first respondent resorted to the drastic action of cancelling the licence on terms set out in the Regulatory Order aforesaid.

Clause 12 of the licence provides:

“12.1 Ownership

12.1.1 Foreign Investment and Shareholding Structure

1. The holder of this licence must be incorporated in Zimbabwe. The licencee shall ensure that the foreign ownership shall be limited to forty-nine percent (49%).

2. Changes in the shareholding structure, at any stage, must be approved by the Authority before it is effected.

3. In the event that the licencee's initial shareholding structure does not conform to the provisions of clause 12.1.1.1 the licencee shall, within five (5) years from date of signing of the licence, ensures (sic) that the foreign ownership is reduced to forty nine percent (49%.).”…,.

Over the years, the applicant has tried to comply by introducing a new partner to assume ownership of the 11 per cent balance of the 60 per cent shareholding held by the foreign partner, Telecel International Limited (TIL), but, the first respondent either rejected the proposed partner or insisted it had to be approved by the Minister.

At one stage, the applicant was told the 11 per cent shareholding could only be sold to the fourth respondent (Empowerment Corporation (Pvt) Ltd) which holds the other 40 percent stake.

The applicant introduced an Employees Share Ownership Scheme (ESOP) in terms of which its employees would own the 11 per cent shares currently in the hands of Telecel International Limited (TIL) in order to move the shareholding to indigenous people.

This was rejected.

It proposed listing on the Zimbabwe Stock Exchange as another option which was also rebuffed.

Instead, the first respondent cancelled the licence.

The reason given for the cancellation appears in paragraph 1 of the first respondent's “judgment” of 28 April 2015 which reads:

“1. INTRODUCTION

This case concerns Telecel Zimbabwe Limited (hereinafter referred to as 'Telecel') non-compliance with licence conditions, provisions of the Postal Telecommunications Act [Chapter 12:05] (hereinafter referred to as 'the Act') as read with Indigenisation and Economic Empowerment laws. The Postal Telecommunications Regulatory Authority of Zimbabwe (hereinafter referred to as 'POTRAZ') has to determine whether the licence issued to Telecel to provide National Cellular Telecommunication Services should be cancelled or not and issue an appropriate order.”

The applicant stated, that, following the cancellation and the “appropriate order” it has appealed to the second respondent (the Minister of Information, Technology, Postal and Courier Services), the responsible Minister, but, meanwhile, the Regulatory Order remains extant as the appeal does not have the effect of suspending the order appealed against.

Whichever way, it is unlikely that the Minister will dispose of the appeal before the expiration of the period of 30 days it has been given to close shop; a period which is unreasonable in the circumstances given that it employs more than 700 direct employees (at the hearing, counsel for the employees corrected that figure, there are 820 direct employees) whose employment contracts would have to be terminated.

In addition, in terms of the Postal and Telecommunications Act, they are entitled to 28 days during which to lodge an appeal.

The applicant therefore craves the interim relief aforesaid.

While the other respondents did not oppose the application; in fact, counsel for the fourth respondent (Empowerment Corporation (Pvt) Ltd) supported it, and counsel for the second and third respondents (Minister of Information, Technology, Postal and Courier Services N.O. and Chief Secretary in the Office of the President and Cabinet N.O.) had no submissions to make except that the Minister would await the appeal, the first respondent surprisingly opposed the application, vehemently, as if everything depended on the cancellation of the licence and the closure of the applicant.

Counsel for the first respondent contested the validity and urgency of the application....,.

He submitted, that, the applicant should not be entertained on an urgent basis because the matter is simply not urgent; in fact, this is self-created urgency.

The applicant was aware of the intention to cancel its licence as at 5 March 2015 when the first respondent advised it of that intention by letter of that date. It should have taken remedial action then, instead of waiting until 30 April 2015 to file this application. For that reason, the matter is not urgent and the applicant should be turned away for that reason alone.

In my view, there is no merit whatsoever in that point in limine.

I find myself having to repeat what I stated in The National Prosecuting Authority v Busangabanye & Anor HH427-15…,:

“In my view, this issue of self-created urgency has been blown out of proportion. Surely, a delay of 22 days cannot be said to be inordinate as to constitute self created urgency. Quite often, in recent history, we are subjected to endless points in limine centered on urgency which should not be made at all. Courts appreciate that litigants do not eat, move, and have their being in filing court process. There are other issues they attend to, and, where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.”

I agree with counsel for the applicant, that, raising the issue of urgency by respondents finding themselves faced with an urgent application is now a matter of routine.

Invariably, when one opens a notice of opposition these days, he is confronted by a point in limine challenging the urgency of the application, which should not be made at all. We are spending a lot of time determining points in limine which do not have the remotest chance of success at the expense of the substance of a dispute.

Legal practitioners should be reminded, that, it is an exercise in futility to raise points in limine simply as a matter of fashion.

A preliminary point should only be taken where:

(i) Firstly, it is meritable; and

(ii) Secondly, it is likely to dispose of the matter.

The time has come to discourage such waste of the court's time by the making of endless points in limine by litigants afraid of the merits of the matter, or legal practitioners who have no confidence in their client's defence viz-a-viz the substance of the dispute, in the hope that, by chance, the court may find in their favour.

If an opposition has no merit it should not be made at all.

As points in limine are usually raised on points of law and procedure, they are the product of the ingenuity of legal practitioners.

In future, it may be necessary to reign in the legal practitioners who abuse the court in that way, by ordering them to pay costs de bonis propiis.

A matter is urgent, if, when the need to act arises, the matter cannot wait. That is the simple test for urgency.

While there is a catena of authorities pronouncing on urgency, it all boils down to the remarks of MAKARAU JP…, in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 232 (H)…, where the learned judge pronounced:

“Some actions, by their very nature, demand urgent attention and the law appears to have recognized that position. Thus, actions to protect life and liberty of individuals, or where the interests of minor children are at risk, demand that the courts drop everything else, and, in appropriate cases, grant interim relief protecting the affected rights. The rationale of the courts acting swiftly where such interests are concerned is, in my view, clear….,. It is now accepted, that, in some cases, even purely commercial interests can be protected urgently in appropriate cases.

In Silvers Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR 490 (H), SMITH J considered the matter of the release of certain attached imports on the basis that the applicant would face bankruptcy and its 67 employees would lose their jobs as a result.

In my view, the reasoning adopted by SMITH J in this regard is still in line with the objective test, that, had the courts waited, there would have been no need for the court to act subsequently. The applicant would have been liquidated and the return to it of the attached imports would not have reversed the effect of non-timeous action by the court. It would be of no further benefit to the applicant to pursue the legal interest.

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.”…,.

See also Triple C Pigs & Anor v Commissioner General, Zimbabwe Revenue Authority 2007 (1) ZLR 27 (H)…,.

It is not factually correct for counsel for the first respondent to suggest, that, the applicant did not do anything from 5 March 2015.

On that date, the first respondent gave notice of an intent to cancel the licence and invited the applicant to make representations as to why such cancellation should not be effected.

This was as it should have been in terms of the procedure set out in section 43(2) of the Postal and Telecommunications Act.

The applicant made those representations, which did not find favour with the first respondent, and, it duly cancelled the licence, on 28 April 2015, issuing an order which ignored, completely, the applicant's right of appeal to the Minister.

In my view, the need to act arose when the applicant received the notice of cancellation dated 28 April 2015.

It obliged by filing this application on 30 April 2015 – two (2) days later.

There can be no possibility of self-created urgency. For that reason, I dismissed the point in limine as being fanciful and without merit.

This is a matter which cannot wait at all because the operation of the Regulatory Order started immediately, and, in 30 days, the applicants would have to close with all the attendant consequences.

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD
Ruled By: MWAYERA J

A raft of measures meant to comply with the World Health Organisation (WHO) guidelines on the prevention, containment, and treatment of Coronavirus disease, commonly known as COVID 19, prompted the Minister of Health and Child Care, and, indeed, the Government of Zimbabwe to make an order for National lockdown under Statutory Instrument 83 of 2020, SI83 of 2020, on 28 March with effective date of operation 30 March 2020.

The Order, among other important provisions, provides that the supply of water and electricity services are critical and essential services.

The virus is real and indeed a menace as evidenced by reports of the numbers of the infected and dead. Zimbabwe has not been spared by this invisible but real enemy wreaking havoc among the rich and the poor without distinction by colour, creed, or age.

At the time of hearing, nine (9) recorded cases had been confirmed and one (1) death recorded in Zimbabwe. South Africa had 1,505 positive cases and 9 deaths. Globally, there were 1,051,697 positive cases and 56,986 deaths: see Situation Report 75 - World Health Organisation www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports

Bearing in mind the emphasis on personal hygiene, anchored on the need to regularly wash hands with clean running water and soap, the applicants jostled into action.

The applicants had no water supply since the Zimbabwe Water Supply pumps supplying the household with water for community consumption had been rendered dry by disconnection of electricity.

World over, including our neighbour South Africa, news reported increase in numbers of infected people and deaths due to the formidable pandemic.

The applicants, faced with COVID-19 outbreak and threat without running tap water due to ZESA power cut to the ZINWA outlet which supplies them with water, approached this court through the urgent chamber book. The applicant sought:

“TERMS OF THE FINAL ORDER SOUGHT

1. That the Respondent provides electricity supply services to the Zimbabwe National Water Authority water pumps within Arda–Transau community for the duration of the state of disaster subject to the load shedding schedule.

2. No order as to costs.

TERMS OF THE INTERIM ORDER SOUGHT

1. That the Respondent immediately restores electricity supply services to the Zimbabwe National Water Authority water pumps within Arda–Transau community.”

The respondents were properly served but did not respond or appear.

The brief history of the matter is as follows:

The applicant (trustees of the Trust) represent the interests and rights of the Trust; its members and beneficiaries relocated from Chiadzwa diamond fields in Marange and now reside in ARDA TRANSAU.

The relocation occurred between 2010 and 2016.

From inception of relocation up to 2019 December, the mining companies that relocated their families have been responsible for paying for electricity supply to the respondent. The electricity supply powered water pumps installed by the Zimbabwe National Water Authority for water supplies to the relocated families. The mining companies, namely, Anjin Diamond Mining Company, Mbada Diamonds Housing, Jinan Mining, Marange Resources, and Zimbabwe Consolidated Diamond Company paid in full for the power utility bills.

Upon the ceasation or discontinuity of the complete subsidization of power utility bills by the mining companies, the community struggled to pay for the electricity consumption bills.

This culminated in a cumulative debt of ZW$30,000 owing to the respondent, ZESA.

Consequently, the respondent rightfully discontinued the supply of electricity to the community for none payment of electricity bills. The disconnection inevitably means no supply of tap water to the community.

On the face of it, this is self-created urgency stemming from non-payment of ZESA bills; but, the question is:

Is it really self created urgency given the background history of being relocated and having mining companies pay the ZESA bills and then stopping?

The problem was not the villagers own making.

Upon considering whether or not a matter is urgent, the settled factors which fall for consideration should never be looked at in isolation, neither should they be dissociated from the history and all circumstances of the cause.

Looking at requirements of urgency in isolation would lead to erroneous view of the status of the matter.

The immediate factors giving rise to this urgent application fall under scrutiny.

On 30 January 2020, the World Health Organisation (WHO) declared Coronavirus Disease – 2019, generally known as COVID19, a Public Health Emergency of International Concern: see http//:www.who.int

Pursuant to the declaration, the World Health Organisation (WHO) set guidelines for all countries to curb and control the outbreak of the disease, and, among other important measures, is the critical requirement that individuals must regularly wash hands with clean running water and soap-based substances, and, further, that people must maintain social distancing for about a metre from the next person in order to minimize the risk of transfer of the virus disease.

The Zimbabwean Government, in response, is no exception as it declared, through Presidential action, a State of Disaster (the Civil Protection (Declaration of State of Disaster) Rural and Urban Areas of Zimbabwe (COVID 19) Notice 2020), and, consequently, a National Lockdown, to contain the spread of COVID19 (the Public Health (COVID-19 Prevention, Containment and Treatment (National Lockdown) Order 2020).

In an effort to give effect to the World Health Organization (WHO) guidelines to contain the spread of COVID 19 and protect citizens, the Government of Zimbabwe, in terms of S.I.83 of 2020 banned gatherings of more than two persons in public places and declared water and electricity supply services as essential services….,.

Water and electricity are critical services; however, at the time of hearing, both are lacking to the applicants despite being also part of all the other citizens in the declared state of disaster occasioned by the outbreak of COVID 19.

The circumstances are clear, that, the applicants do not have clean and regular water supply because of electricity disconnection to the Zimbabwe National Water Authority (ZINWA). This naturally poses a threat to personal hygiene during the lockdown period, and, worse still, spells doom to the intended containment of the national disaster, and would be further obstructive to the global efforts to successfully fight against this deadly scourge pandemic, COVID 19.

The case cries out for urgent redress, and, indeed, spells out and clearly meets the requirements of urgency as contemplated by the Rules of this court.

The applicant acted with agility as they set out to file the application upon the publication of water and electricity as an essential commodity. The publication was on 28 March 2020 and 3 April the applicants were at court.

They undoubtedly treated the matter as urgent: see Madzivanzira and Ors v Dexprint (Pvt) Ltd and Anor HH245-02.

Secondly, there is no other remedy except seeking redress with the court for connection of electricity to the Zimbabwe National Water Authority (ZINWA) pipes for water to be availed.

The applicants have accrued a debt through the diamond companies under whom they were resettled. The long term solution, of awaiting for repayment of debt, would occasion irreparable harm not only to the applicants but the national and global village.

Critically, the none availability of water disrupt the efforts to contain the spread of COVID 19.

There will be no irreparable harm occasioned to the respondents because the applicants are not seeking to be exonerated from the debt, neither are they seeking the debt to be written off, but, are seeking an interim relief for restoration of electricity supply to the Zimbabwe National Water Authority (ZINWA) pumps for them to access clean and portable water for personal hygiene during the lockdown period only.

The urgent relief sought is the only remedy that will satisfactorily redress the dire circumstances of the applicants.

A matter is viewed as urgent if circumstances depict it cannot wait, as waiting and dealing with the matter later would render the relief sought hollow or useless.

In this case, at the time of hearing, the deadly pandemic outbreak was causing havoc the world over. This jurisdiction declared it a disaster, and water and electricity supply were termed critical or essential services.

To have the matter wait and proceed on the ordinary roll would amount to a reactive reaction post event. That would not serve any purpose.

In this matter, the circumstances and the prevailing situation speak volumes to the extreme urgency of the matter. This is a case which apparently denotes urgency from the cause of action and nature of relief sought: see Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 H.

In the present case, the matter is fully clothed and colored with urgency.

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Urgency re: Commercial and Humanitarian Considerations and Interests of Minors

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