After hearing counsel in this matter, we allowed the appeal with costs and issued an order in the following terms:
“IT IS ORDERED THAT:
1. The appeal succeeds with costs.
2. The judgment of the court a quo is set aside and substituted with the following:
'The application is hereby granted in terms of the draft order.'”
We intimated that our reasons would follow in due course. These are they.
The appellant (hereinafter referred to as 'Portland') and the second respondent (hereinafter referred to as 'Bak Logistics') are private companies duly registered as such under the laws of this country. Portland is a producer of cement which is sold both locally and externally. Bak Logistics provides warehousing and bulk storage services to the general public.
The first respondent (hereinafter referred to as 'Tupelostep') is a company registered under the laws of South Africa. It has its headquarters in that country. It provides extensive haulage freight services throughout Southern Africa.
At the beginning of 2012, Portland obtained orders for the export of cement to Mozambique. Sometime in February or March 2012, Portland engaged Tupelostep to arrange the transportation of cement into Mozambique on its behalf.
The terms of the contract obliged Portland to convey the cement to Tupelostep by rail. In turn, Tupelostep would arrange for the storage of the cement pending receipt of export documents from Portland.
In order to comply with its obligations under this contract, Tupelostep entered into an agreement with Bak Logistics for storage and warehousing of the cement pending its conveyance to Mozambique.
On receipt of clearance documents from Portland, Tupelostep would then arrange for the transportation of the cement by road. The process would, on occasion, entail the hire of vehicles from third parties. There was, however, no contract between Portland and Bak Logistics, and Portland was not privy to the contract between Tupelostep and Bak Logistics.
In September 2012, Portland transported a consignment of 1,270 tons of cement to Tupelostep by rail. It was stored with Bak Logistics.
A dispute then arose between Portland and Tupelostep regarding charges claimed by the latter in the discharge of its obligations and services under the contract. The parties attempted to settle the dispute but failed.
In December 2012, Tupelostep advised Portland that it would no longer allow movement of stock from the warehouse unless it was paid certain sums of money being claimed by it for demurrage and transportation costs.
On 16 January 2013, Portland gave notice to Tupelostep of its intention to terminate the mandate for storage and transportation of the cement.
On 29 January 2013, Portland addressed an email to Tupelostep demanding the release to it of documentation availed to Tupelostep in respect of the consignment of cement under its control and in the possession of Bak Logistics.
In turn, Tupelostep responded by refusing to release the documents in its custody for a number of reasons which are not germane to the resolution of this dispute.
On 4 February 2013, Portland filed an urgent application with the High Court in respect of which it sought relief expressed as follows:
“INTERIM RELIEF GRANTED
Pending determination of this matter, the Applicant is granted the following relief;
1. That 1st and 2nd Respondent be and are hereby ordered to release to applicant the applicant's cement being 1,270 tons of cement held by 1st and 2nd respondent at 2nd respondent's premises at 106 Dartford Road, Willowvale Industrial Area, Harare.
2. That the proceeds of sale of the cement be held at a trust account in the law firm of Messrs Gill, Godlonton & Gerrans of 7th Floor, Beverly Court, 100 Nelson Mandela Avenue.
TERMS OF THE FINAL ORDER SOUGHT
That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms:
1. That the proceeds of the cement held by Messers Gill, Godlonton & Gerrans in their trust account be disbursed in terms of an order of this Honourable Court confirming the entitlement of either party to such proceeds.
2. That the costs of this application be borne by the party succeeding in the anticipated litigation between the parties. (sic)”
The application was opposed by both respondents.
The High Court heard the parties on the question of urgency and decided that the application was not urgent.
The court then dismissed the application with costs on the basis of lack of urgency.
This appeal is against that decision.
It was contended that the High Court erred in the exercise of its discretion, and that, to that extent, it had misdirected itself.
Portland approached the High Court for urgent relief on the premise that Tupelostep was holding on to cement which belonged to the former and that its actions were illegal and unjustified.
It was also alleged, in the certificate of urgency, that, cement, by virtue of its hygroscopic nature, had a limited lifespan and that any continued delay in its release to Portland would result in financial loss to Portland.
Whilst accepting that commercial interests can be advanced as a basis for urgency, the learned judge in the court a quo found that the urgency in the matter before him was self-created. This is what the learned judge stated:
“I am however persuaded by counsel for respondents argument, that, the urgency pleaded by the applicant is self-created. In the first place, it was not denied that the cement has been with the respondents since September 2012. If, therefore, cement has a short shelf life, why did the applicant not seek its release much earlier? Secondly, the argument that it tends to attract moisture is as relevant now as it was from the onset of the rainy season. The need to act was ever present from the onset, taking into account the nature of the product that is in dispute. In other words, the matter cannot assume more urgency towards the end of the shelf life of a product whose delicacy has never been in doubt.”
It seems to me that the court a quo determined the matter on facts which were not before it.
The consignment of cement was sent to the warehouse in September 2012, but, the record shows that there was movement of stocks from the warehouse without hindrance. The problem arose on 16 January 2013 when Tupelostep wrote an email to Portland advising that a halt had been placed on the movement of the product from the warehouse on its instructions.
That is when in fact the need to act arose and not in September 2012 as stated by the learned judge in the court a quo.
This fact is confirmed by the opposing affidavit filed on behalf of Tupelostep in which the statement is made that:
“Up until 15 January 2013, the first respondent never prevented the removal of cement.”
It is therefore accepted by Tupelostep that cement was being moved up until that date.
If Portland had the right to remove cement up until that date, it follows that the need to act cannot, by any stretch of the imagination, have arisen prior to that date.
In its judgment, the court accepted that what triggered the application was the negation, on 31 January 2013, of an agreement by the parties allowing the removal of the cement by Portland.
The application was filed on 4 February 2013 - a mere four days after the agreement was negated by Tupelostep.
The suggestion that the cement should have been removed in September 2012 is therefore not supported by the record, as, the storage in September was for purposes of facilitating its transportation. The storage was part and parcel of the modus operandi of the contract by the parties.
I am satisfied that the matter ought to have been dealt with on the basis of urgency. No delay had been established on the respondents papers.
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.
However, over and above these criticisms, the High Court, having decided to determine the matter on the issue of urgency, dismissed the application on the basis that it was not urgent.
This was not the proper course to follow.
Instead, it should have removed the matter from the roll on the basis that it lacked urgency.
Such a course would have left the door open for the appellant to place the matter before the court for determination as an ordinary court application.
In Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust SC71-14, ZIYAMBI JA remarked as follows:
“However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.”…,.
I respectfully associate myself with the dicta by her Ladyship. It follows, that, the dismissal of the application for want of urgency is improper.
