MUTEMA J: This matter was set to be
heard by my brother BHUNU J on 24 January, 2011 at 09.00 hours but could not
because the first respondent had filed its opposing papers shortly before 09.00
hours. BHUNU J then postponed it sine die
to enable the applicants to file a replying affidavit by 31 January, 2011 and
thereafter, parties were to file supplementary heads of argument by 3 February,
2011. Subsequently, the matter was set down for hearing on 4 February, 2011 but
was then postponed to 14 February, 2011 when it found its way to me for the
simple reason that BHUNU J. is dealing with a criminal trial in which one of
the accused persons Dominic Mubayiwa is a former Chief Executive Officer of
first respondent and was involved in concluding the Memoranda of Understanding
between the parties which are the subject of the dispute between them.
The
applicants seek interim relief on an urgent basis in the following terms:
“1. The first respondent be and is hereby
interdicted from alienating or otherwise
disposing of or dealing with the
rights of the third and fourth respondents arising out of the Memoranda of
Understanding concluded between the applicants and the first respondent at
Harare on 25 July 2008 and 13 October 2006, pending the outcome of an
arbitration to be instituted by the applicants in Paris in accordance with the
aforementioned Memoranda of
Understanding;
2.
The
first, third and fourth respondents be interdicted from amending, altering or
changing the shareholding in and the share registers of the third and fourth
respondents pending the outcome of the arbitration referred to in prayer 1
above;
3.
The
applicants be and are hereby ordered to institute the aforementioned
arbitration proceedings within 60 days from the date of this order;
4.
Leave
be and is hereby granted to the applicant's legal practitioners of record to
serve the provisional order on all respondents”.
By the time I heard the matter the
third term in the interim relief sought cited above
had fallen away, the applicants
having already instituted the arbitration proceedings on 31 January, 2011 at
the International Court of Arbitration in Paris,
France.
The
present application is opposed both on the question of urgency and on the
merits. On the hearing day I restricted the parties' arguments to the issue of
urgency.
The
bare bones of the dispute are these: Following the conclusion of the Memoranda
of Understanding (MOUS) alluded to in relief 1 supra, the first respondent advised the applicants by letter dated
10 November, 2010 of the termination of the MOUS for both platinum and nickel.
What can be gleaned from the papers that were filed by first respondent, as the
main grounds for terminating the MOUS are that they had lapsed, that they were
entered into without the approval of the responsible Minister, hence invalid
and that they were tainted with corruption in that the applicants or one of
their directors had a corrupt relationship/dealing with Dominic Mubayiwa the
erstwhile Chief Executive Officer of the first respondent. On 21 December, 2010
the first respondent reiterated its position regarding the termination of the
MOUS in these words, “… The mutual negotiations and meetings do not in any way
affect or change our position regarding the cancellation of the MOU. We further
reiterate that the chairman never assured you of the reinstatement of MOU as
you seem to suggest in your letter. We hope this will put the record straight
as has always been our emphasis in our meetings and you will be guided
accordingly”.
The
applicants' need to act on an urgent basis arose on 10 November, 2010 when the
MOUS were cancelled by first respondent. They did not. Instead on 22 November,
2010 they demanded that first respondent makes an undertaking “not to attempt
to disturb the presently existing legal relationship as established by the MOUS
and the rights preceding that relationship and flowing there-from in any way
whatsoever, for examples (sic) by
alienating any rights to any third party or affecting the Amari Group's rights
in any way whatsoever.
If
no such undertaking is given pending the negotiations to be undertaken and
pending the outcome of the arbitration before the International Court of
Arbitration, … it would become necessary for an urgent interim interdict to be
brought in the appropriate Zimbabwean
Court to preserve the Amari Group's rights”.
Not
only was this demand ignored by the first respondent but first respondent put
the issue beyond any doubt by its letter of 21 December, 2010 alluded to supra that no such undertaking would
ever be given. Another need to act on an urgent basis went begging. It was only
on 18 January, 2011 that this urgent application was filed. No explanation has
been proferred for the delay to act, at least, if one were to be benevolent to
applicants, from 21 December, 2010.
In
Kuvarega v Registrar-General & Anor
1998(1) ZLR 188 (HC), it was held that 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 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 a delay. In casu such an explanation is absent
except for some allusion to or narration of a careless abstention from action.
The
preferential treatment of allowing a matter to be dealt with urgently is only
extended if good cause is shown for treating the litigant in question differently
from most litigants – See General
Transport and Engineering (Pvt) Ltd and Ors v Zimbabwe Banking Corporation
1998(2) ZLR 301 (HC). In casu no such
good cause has been shown. Even the perceived need to act, viz alleged fear of
first respondent being in the process of transferring applicants' interest in
third and fourth respondents to an unnamed 3rd party is mere
speculation or conjecture. Applicants allege that their representatives “in Zimbabwe have
been informed that first respondent is in the process of negotiating the
disposal of the rights to a 3rd party”. The so called 3rd
party is not named and the representatives have filed no affidavit to support
the averment. The allegation remains a rumour and the Court does not rely/act
on rumours.
In
the event, on the totality of the foregoing, the present application has failed
to scale the insurmountable hurdle besetting it for it to qualify for the
urgency contemplated by the rules. It is accordingly dismissed on that basis
with costs.
Dube, Manikai &
Hwacha, applicants'
legal practitioners
Mutamangira
& Associates, 1st
respondent's legal practitioners
