Motsamai (Pvt) Ltd t/a Tuli-Limpopo Safaris v Gwanda Rural District Council & 2 Ors

### Preamble
1
HB 211/20
HC 1612/20
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MOTSAMAI (PVT) LTD

t/a TULI-LIMPOPO SAFARIS

Versus

GWANDA RURAL DISTRICT COUNCIL

And

NATIONAL PARKS & WILDLIFE MANAGEMENT AUTHORITY

And

OFFICER-IN-CHARGE ZRP – GWANDA

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 23 SEPTEMBER & 30 SEPTEMBER 2020

Urgent Chamber Application

G. Nyoni for the applicant

S. Chamunorwa for the 1st respondent

N. Mangena for the 2nd respondent

B. T. Nyoni for the 3rd respondent

KABASA J:	On 12th August 2016, the applicant and 1st respondent signed a joint venture agreement (JVA) which entailed the operation of a safari business by the applicant within the 1st respondent’s Doddieburn-Manyole Ranch.  This joint venture would see the applicant, inter alia, marketing wildlife for purposes of safari hunting and keeping accurate books of accounts in relation to the hunts.  The 1st respondent as the land authority had the responsibility of signing the TR2 forms after each hunt.  The profits realized from the venture were to be shared in accordance with the terms of the JVA.

Unfortunately the business venture hit turbulent times and on 4 June 2018 the 1st respondent wrote to the applicant complaining of a breach of the JVA and calling on the applicant to purge the breach at the pain of having the JVA terminated.  The parties failed to find each other and on 24 July 2018 the 1st respondent wrote to the applicant terminating the JVA with effect from 23 July 2018.

The applicant subsequently instituted action against the 1st respondent under case number HC 2103/18, which action stemmed from the cancellation of the JVA. The 1st respondent also filed an urgent chamber application under case number HC 2460/18 to stop the applicant from conducting hunts at the farm.  The application was granted but the applicant appealed against the judgment to the Supreme Court.  The matter has since been argued and is awaiting judgment.

The 1st respondent, as provided for in the JVA, also took the matter for arbitration seeking an interim order allowing it access to the Doddieburn-Manyole Ranch for a verification exercise and access to financial statements pertaining to the operations of the safari business at the farm.  The arbitrator is still seized with the matter.

A flurry of correspondences between the parties failed to break the impasse.  The applicant in the meantime continued with marketing for safari hunts.  On 16th September 2020 the applicant was advised that one Chloe Le Roux was coming to conduct a hunt at the farm.  Such hunt required a hunting quota and permit which is issued by the 2nd respondent.  On approaching the 2nd respondent for the release of the hunting quota the applicant hit a snag as the 1st respondent had instructed the 2nd respondent not to issue hunting quotas to anyone, including the applicant.  Efforts to engage the 1st respondent through their legal practitioners failed to yield the desired result.  The net effect was therefore ‘no hunt without the requisite hunting quota and permit.’

The applicant then filed this urgent chamber application seeking the following interim relief:

“1.	1st respondent be and is hereby ordered to immediately, in any event within 2 hours of the order being served on it, to authorize the release of and collection of the hunting quota and permit for Doddie-Manyole farm and, also to surrender same to the applicant to facilitate the hunt by Chloe Le Roux scheduled for the 22nd of September 2020 to the 1st of October 2020.

2.	Should the 1st respondent fail to act as ordered above, 2nd respondent be and is hereby authorized to immediately thereafter release the said hunting quota and permit to the applicant to facilitate the above hunt.  The 1st respondent, through its officers in Gwanda and failing them, the 3rd respondent, be and are hereby authorized to sign the TR2 form and all other related documents to facilitate the above hunt.”

The final order sought, should the interim relief be granted is as follows:

“1.	That the provisional order of this court be confirmed.

2.	That, pending the finalisation of the arbitral proceedings before the Honourable Job Sibanda, 1st respondent shall not withhold or refuse with hunting quotas and permits for Doddie-Manyole farm or refuse applicant the right to conduct hunts at the said farm.

3.	That pending the finalisation of the said arbitral proceedings, 2nd respondent shall be and are hereby authorized to release the applicant (sic) and, also sign TR2 forms to facilitate hunts by applicant’s clients on the Doddie-Manyole farm.

4.	1st respondent or its agents shall not interfere directly or indirectly, with the said hunts by the applicants.”

At the hearing of this application, Mr. Chamunorwa for the 1st respondent sought a postponement, explaining that they had received the application at 1239 hours and the notice of set down at 1428 hours of the previous day, the 22nd of September 2020.  That allowed for no time to consult with the client who was also desirous of engaging Advocate Nkomo to deal with the matter.  The application for a postponement was opposed by Mr. Nyoni who argued that counsel for the 2nd respondent had also received the application and notice of set down at about the same time but had managed to file opposing papers.

I then enquired from Mr. Chamunorwa whether the matter could not proceed as I wanted the parties to address me on the issue of urgency.  Mr. Chamunorwa was prepared to deal with the preliminary point which became preliminary points as he had other preliminary issues to raise.

This judgment is concerned with these preliminary points.  These are they:-

The matter is not urgent

The parties submitted themselves to arbitration and the arbitrator is seized with an application for interim relief, the applicant ought to have sought interim relief from the arbitrator.

The application is fatally defective for want of form as it did not comply with Rule 241 of the High Court Rules, 1971.

The relief sought by way of an interim order is final in nature and so it is incompetent.

The other 3 points Mr. Chamunorwa sought to raise bordered on the merits and so he did not pursue them. I propose to look at the issue of urgency first.

Urgency

Is the matter urgent?  The urgency is self created, so argued Mr. Chamunorwa, this being so because the applicant has always known that the 1st respondent would not allow it to perform hunts at Doddie- Burn farm.  The urgent application filed under HC 2416/18 was on the issue of these hunts and the 1st respondent’s attitude was clear that no such hunts would be consented to.

The parties had also exchanged correspondences clearly demonstrating the 1st respondent’s attitude to the hunts.  The applicant therefore knew before the 22nd September to 2nd October hunt that such hunts were no longer sanctioned and so the duty to act arose in 2018 not on 16th September 2020.

Mr. Nyoni countered this submission and contended that until 16 September 2020 the applicant was not aware that the 1st respondent had communicated with the 2nd respondent to the effect that no hunting quota was to be released to the applicant.  Had the applicant been copied in that communication, it would have approached the court.

The judgment in HC 2416/18 which blocked the hunts by the applicant was appealed against and such appeal suspended the operation of that judgment.  The applicant therefore took it that until the determination of the appeal it could proceed with hunts at the 1st respondent’s farm.  The urgency was therefore not self created, so argued Mr. Nyoni.

I have already given a background to this matter, a background which shows that discord between the parties started as far back as 2018 and the litigation which ensued was as a result of such discord.  The JVA between the parties hit turbulent waters in 2018 and all the correspondence which followed thereafter speak to the tug-of-war between the parties.  The 1st respondent’s stance, whether right or wrong, was that the JVA was no more and with its demise went the hunting/safari business the applicant was enjoying at the farm.

When therefore did the need to act arise?  Was it in 2018 when the safari business was threatened due to the ‘cancellation’ of the agreement or 16th September 2020 when Chloe Le Roux’s hunting visit was imminent?

In Kuvarega v Registrar General and Another 1998 (1) ZLR 188, CHATIKOBO J had this to say on urgency:-

“What constitutes urgency is not only the imminent arrival of the day of reckoning.  A matter is also urgent if at the time the need to act arises, the matter cannot wait.  Urgency which stems from deliberate or careless absention from action until the deadline draws near is not the type of urgency contemplated by the rules.  If there has been any delay, the certificate of urgency or supporting affidavit must contain an explanation of the non timeous action.”

Where urgency has been established, the matter is allowed to jump the queue at the expense of other cases filed well before it.  Such an indulgence must not be given for the mere asking.

It is clear the applicant approached the court because of the refusal by the 1st respondent to allow the issuance of a hunting quota and permit.  This was not something that the applicant was unaware of before 16th September 2020.

I will reproduce hereunder a letter written by counsel for the 1st respondent on 24th January 2019, in response to a letter written to them by the applicant’s counsel.

“On 21 January 2019, your clients delivered to our client a letter dated 20 January 2019.  A copy of the letter is attached hereto:-

In their letter, your clients demand that ours allow them to collect the 2019 hunting quota,

With respect, our client terminated the joint venture agreement and, with such termination, your client’s right to occupy Doddie-burn Ranch, or alternatively, to enforce any terms of the terminated joint venture.

Your clients have instituted action proceedings out of the High Court under case number HC 2103/18 which they have, however, failed to prosecute timeously.  Your clients ought to pursue their matter to finality if they have confidence that they enjoy prospects of success.

On its part, our client has instituted an urgent application out of the High Court under case number HC 2460/18 seeking relief against your clients.  The matter is awaiting judgment.

Our client, in the circumstances, does not accede to your demand.”

This letter makes it clear that the applicant’s interests at Doddie-burn Ranch were in jeopardy.  If there was need to protect such interests and ensure future hunts were to go ahead without impediment, the applicant could have brought an urgent application then, in much the same terms as the present one but it did not.

A letter addressed to the applicant’s legal practitioners dated 13th February 2019 suggests that the applicant had resorted to “using third parties to avoid council.”

The 22 September 2020 hunt would probably have gone unimpeded had 1st respondent not communicated with the 2nd respondent not to issue the hunting quota.

It may very well be argued that the 1st respondent could not just purport to cancel the agreement unilaterally to the applicant’s prejudice but the fact is it did and the applicant could have brought an application then to interdict the 1st respondent from interfering with hunts until the resolution of the JVA termination issue.  It did not.

I am therefore persuaded by counsel for the 1st respondent’s argument that the fact that the applicant has organised a hunt for the 22nd September - 2nd October 2020 does not render the matter urgent.

I am fortified in saying so because this hunt could not possibly have suddenly materialized on the 16th of September 2020.  Whatever preparations that went into it ought to have been done in the full knowledge of the turbulency surrounding the JVA.  The applicant left their affairs to chance, only to approach the court at the 11th hour.

The urgent chamber application was filed on 21st September 2020 and yet the hunt by Chloe Le Roux was scheduled for 22nd September – 1st October 2020.  It is as if the applicant believed that by bringing the application on the very eve of the hunt that on its own would create urgency.

As at 16th September 2020 the applicant was aware that the hunting quota and permit were not going to be issued.  It chose to engage in dialogue with a party that had already shown they were not relenting on their stance.

Even if it was to be accepted that 16th September 2020 was when the need to act arose, the applicant did not so act and no cogent reason was given for such failure. In the Kuvarega v Registrar- General case (supra) the applicant had been advised by the Registrar-General on 13th February 1998 that people would not be barred from wearing the T-Shirts the applicant was unhappy with. The applicant however only filed the urgent application to stop the wearing of party attire on 20th February 1998, the last working day before the election. Chatikobo J observed that there was no explanation as to why no action was taken until so late in the day. In casu the applicant filed the urgent application on the eve of the hunt and yet knew about the 1st respondent’s instruction to the 2nd respondent on the 16th of September.

The certificate of urgency did not help matters. It merely talks of the hunt scheduled for 21st September and that the  professional hunters, scouts and trackers have all been lined up but does not show why action was not taken at the time it ought to have been taken.  One gets the impression that the legal practitioner who filed the certificate of urgency was of the view that just mentioning the imminence of the hunt and what is entailed in preparing for one was sufficient to establish urgency. It certainly is not.

It is also interesting to note that the legal practitioner states that such hunt is to commence on the 21st September 2020, the very day the application was filed.

In Documents Support Centre P/L v Mapuvire 2006 (2) ZLR 240 at 244C-D MAKARAU JP (as she then was) had this to say:-

“… urgent applications are those where if the court fail to act, the applicant 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.”

This can only be said by an applicant who acted when the need to act arose and acted with haste commensurate with their perceived “urgency” of the matter.  In casu it is the applicant who failed to act and ought to have accepted the folly of not acting when the need to so act arose and consequently resign itself to the consequences.

“Urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme prejudice to the applicant.  The applicant must exhibit urgency in the manner in which he has reacted to the event or threat.”  ( my emphasis) (Gwarada v Johnson 2009 (2) ZLR 159)

No urgency was exhibited in casu; the prejudice to be suffered is not, on its own, what constitutes urgency.

It is my considered view that this matter is not urgent and ought not to be allowed to jump the queue.

This finding means I will not exercise my mind any further. A finding on the other preliminary points relating to the lack of form, the lack of recourse to arbitration and the incompetence of the relief sought will not change the complexion of the matter.  I therefore find no useful purpose in proceeding to determine the other points in limine when my finding on lack of urgency is dispositive of the matter.

In the result, I make the following order:-

The matter is not urgent and is accordingly removed from the roll of urgent matters.

Costs will follow the cause.

Messrs Moyo & Nyoni, applicant’s legal practitioners

Messrs Calderwood, Bryce Hendrie & Partners, 1st respondent’s legal practitioners

Coghlan and Welsh, 2nd respondent’s legal practitioners

Civil Division of the Attorney General’s Office, 3rd respondent’s legal practitioners