Matupula Hunters (Pvt) Ltd v Tsholotsho Rural District Council and Zimbabwe Parks and Wildlife Management Authority

### Preamble
1
HB 30-19
HC 185/19
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MATUPULA HUNTERS (PVT) LTD

versus

TSHOLOTSHO RURAL DISTRICT COUNCIL

and

ZIMBABWE PARKS AND WILDLIFE

MANAGEMENT AUTHORITY

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 15 FEBRUARY 2019 AND 28 FEBRUARY 2019

Urgent Chamber Application

J Sibanda for the applicant

N Sithole for the 1st respondent

MOYO J:	This is an urgent application wherein the applicant seeks the following interim relief:

“Pending the confirmation or discharge of this order, that it shall have the effect of,

Restraining the 1st respondent from allocating the annual quota in respect of Tsholotsho North concession area, being the area leased by the applicant from 1st respondent, to any third party and or issuing hunting permits for the same area leased by applicant.”

The facts of the matter are that applicant and first respondent have a contractual history wherein the parties entered into a contract on January 2014, in terms of which first respondent as the authority responsible for Tsholotsho North, granted to the applicant “the sole and exclusive rights to conduct all safaris within the safari concession area.  The agreement included both hunting and photographic safaris.

The agreement was in terms of clause 1 therein to endure for 5 years, starting on 1 January 2014 and terminating on 31 December 2018.

Clause 1 further provided that:

“Renewal of this lease shall be up to council upon satisfactory performance by the hunter in terms of the terms and conditions of this lease and any changes to the terms of the grant of any such renewal shall be mutually agreed by the parties upon three months notice in writing on the intention to renew being given by the lessee, prior to the expiration of the lease period, that he has fulfilled the terms and obligations of this lease, the hunters request shall be favourably considered.”

In November 2017, applicant wrote to the first respondent requesting a renewal of the contract.  In April 2018, applicant received a letter from first respondent advising that first respondent had acceded to its renewal request by a council resolution of 29 March 2018.  In May 2018, the contract between the parties was formally renewed by the signing of an addendum to the original contract.  Nothing of any significance happened between the parties until January 2019 when applicant wrote to first respondent requesting permission and authority for a hunt.

An official of the first respondent then advised applicant telephonically that it did not appear to him as if applicant’s contract had been renewed and consequently that he did not think that applicant’s request would be approved.

Applicant’s representative then met the acting Chief Executive Officer of first respondent to show him that the contract had been renewed.  The Chief executive officer and the council chairman at the meeting of the 9th of January 2019, advised the applicant’s representative that the contract had not been renewed and that they were intending to advertise and invite bids for the Tsholotsho North Concession area.  They told applicant’s representative that it did not appear as if applicant’s contract had been renewed procedurally and that first respondent did not have any records of the renewal copies.  Applicant’s representative then tendered copies of the renewal agreement.

It would appear the parties did further engage each other through correspondence between the 11th of January 2019 and the 24th of January 2019.

The first respondent opposes the application, firstly on the basis that it is not urgent, and that applicant failed to act under the need to act when, and therefore this court should dismiss the application solely on that basis.

Secondly, that the agreement alleged to have been renewed, was not renewed properly, there being allegations of bribery and framed involving applicant, some chiefs, and an officer of the first respondent.  Also, and more importantly first respondent avers that the “renewal” of this agreement is in direct conflict with the provisions of the law namely the Public Procurement and Disposal of Public Assets Act [Chapter 22:23].

Urgency

The application in this matter was filed on 1 February 2019.  The cause of action arose on the 9th of January 2019 when the Chief Executive Officer and council chairman inframed the applicant that they would not honour the renewal as it was irregular.

Counsel for the applicant argued that in the reckoning on the days, this court must take into account the national shutdown days from the 14th of January to 18th when business slowly resumed after a strike that closed business from the 14th to the 18th of January 2019.   From the 9th of January 2019 to the 1st of February (2019) being the date this urgent application was filed, it’s a period of 22 days.  If one factors in the national shut down week which is approximately 5 days, that leaves a balance of 17 days within which applicant acted.

There is correspondence between the parties’ lawyers where applicant sought to convince the first respondent that its contract was valid.   I hold the view that urgency is not a matter of mathematics.  I hold the view that urgency is a legal matter wherein the total circumstances of a case must be assessed.  I hold the view that for a person to fail the test of urgency, the circumstances of that case must clearly show a neglect of the duty to act when the need arose.

A party must be shown to have sat back and did nothing when the need to act arose.  A party must also be shown to have taken a considerably long period of time before seeking to act on the basis of urgency.  A party must also be shown to not have treated the matter with urgency themselves only to spring up when the day of reckoning cones, or when they have just sat back and been passive for a considerable amount of time.  In this case applicant wrote to first respondent on 11 January 2019 expressing its views on the matter and advising that they would then proceed to act in a bid to protect their interests if first respondent was adamant that the contract had not been renewed.

I believe, due to the national shut down, first respondent’s lawyers responded on 24 January 2019.  The urgent application was subsequently filed on 1 February 2019.  I am not persuaded by first respondent’s submission that the rules of urgency are not applicable in applicant’s respect.  I have not been shown that applicant could have acted earlier than the circumstances shown, but sat back and did nothing.  Neither have I been shown that applicant took a considerably long period of time in the circumstances to act on the basis of urgency to protect its interests.  I hold the view that in the circumstances exhibited by both the papers and the oral agreements before me, applicant cannot be found to have neglected to act when the need to do so arose.  I accordingly conclude that this matter is urgent.

LAWFULNESS OR OTHERWISE OF THE PURPORTED RENEWAL

First respondent submits that the purported renewal is unlawful in that it is not in compliance with the law and that in fact it is a direct breach of the relevant statute which provides that such contracts must first go to tender and then be awarded to the winning bidder.  The applicant does not dispute the provisions of such a law but instead argues that such a law is not yet in effect for the simple reason that section 1 (2) of that Act provides that the statute shall come into effect on a date to be promulgated by the President of the Republic of Zimbabwe through a Statutory Instrument.  Applicant submits that such a statutory instrument does not exist and therefore the law is not yet in effect.

First respondent’s counsel submitted that he confirmed that the law is in effect and promised to provide the relevant statutory instrument citation which he later did.  The statutory instrument submitted into the court record by first respondent’s counsel is Statutory Instrument 152/17 and it reads:

“Date of commencement: Public Procurement and Disposal of Public Assets Act [Chapter 22:23].  His Excellency, the President, in terms of section 1 (2) of the Public Procurement and Disposal of Assets Act [Chapter 22:23], hereby fixes the first of January 2018, as the date on which the said Act shall come into operation.”

It follows therefore that the Act has been in operation for over a year now and that all the dealings between the parties on the renewal of their contract were subject to this law as they were done and concluded during the year 2018.

Applicant’s counsel conceded that if the Act has been brought into effect then applicant’s rights would be affected.

Clearly, the purported renewal is in direct contravention of the law and nothing flows from it.  Applicant thus cannot be held to have established a prima facie right in the circumstances.  It therefore follows that with no prima facie right having been established applicant thus has nothing to protect at law by virtue of the interdict it is seeking.  It is for these reasons that I find that applicant has failed to establish a prima facie right and consequently has failed to make a case for the relief it seeks.

It is for these reasons that the application is dismissed with costs.

Job Sibanda and Associates, applicant’s legal practitioners

Ncube Attorneys, 1st respondent’s legal practitioners