A. Adam and Company (Private) Limited and Others v Goodliving Real Estate (Private) Limited

The first and second appellants owned commercial properties at Stand 147 and 151 Mbuya Nehanda Street, Harare. They entered into a partnership agreement with the respondent, a real estate company, whereby the respondent would develop and build shops on the appellants' stands at its own expense. The agreement was to be valid for 3 years and subject to renewal. Upon completion, the parties would lease the properties with the appellants entitled to 67% of rentals and the respondent to 33%. A dispute arose regarding the duration of the agreement - appellants alleged it was for 3 years only, while the respondent claimed it was for 15 years based on a prior verbal agreement. The dispute led to extensive litigation including a consent order by Takuva J (HC 7215/13) maintaining the status quo pending arbitration, arbitration proceedings, an arbitral award in favor of the appellants, and an application that set aside the arbitral award (by Phiri J). Following the setting aside of the arbitral award, the respondent applied for an interdict to stop the appellants from interfering with management of the properties and ordering that rentals collected be shared according to the partnership agreement. The High Court granted the interdict sought by the respondent.

• Whether the court a quo correctly granted the interdict sought by the respondent
• Whether the court erred in considering the requirements for an interim interdict when the application was for a final interdict
• Whether the respondent satisfied the requirements for a final interdict
• Whether the court should have been guided by the papers and pleadings placed before it

The appeal succeeds with costs. The judgment of the court a quo is set aside and substituted with an order dismissing the application with costs.

A court seized with an application for a final interdict cannot determine the application on the basis of the requirements for an interim interdict. The requirements for a final interdict are: (a) a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the absence of similar protection by any other ordinary remedy. These differ from the requirements for an interim interdict which are: (a) a prima facie right, though open to doubt; (b) a well-grounded apprehension of irreparable harm; (c) the balance of convenience must favor the granting of the interdict; and (d) absence of any other satisfactory remedy. A court must be guided by the papers and pleadings placed before it by the parties and must determine the dispute as framed by the parties, not substitute its own formulation of the issues or relief sought. The failure to determine the actual dispute placed before the court constitutes a gross misdirection that vitiates the order granted.

The Court noted the extensive litigation history between the parties including multiple court proceedings and arbitration. While the Court found merit in the appeal on the procedural ground relating to the type of interdict considered, it declined to award costs on a legal practitioner-client scale as it was not persuaded that the appellants had made out a case justifying such an award. The Court did not need to determine the substantive merits of whether the respondent had established the requirements for a final interdict, as the appeal succeeded on the preliminary procedural ground. The judgment also references the consent order by Takuva J and the arbitral award proceedings, though these did not form part of the ratio as the case was decided on the narrow procedural ground.

This case reinforces important principles of civil procedure in South African and Zimbabwean law regarding interdicts. It emphasizes that courts must strictly adhere to the type of relief sought by parties and apply the appropriate legal tests. The judgment underscores that a court cannot substitute its own determination of what relief should be granted for that which is actually sought by the parties. It clarifies the distinct requirements for final versus interim interdicts and reinforces that courts must remain guided by the pleadings and papers before them without going on a 'frolic of their own'. The case is an important reminder of the fundamental principle that courts determine disputes as framed by the parties, not as the court might think they should be framed.