Admire Rubaya and Miriam Chiba v Mazvel Investments (Private) Limited and Infrastructure Development Bank of Zimbabwe

The second respondent advertised residential stands for sale in the Sumben Housing Project, Mount Pleasant, Harare. The applicants, a married couple, responded to the advertisement and made an offer to purchase Stand 805, including a deposit of US$9,050.00 which they paid on 19 September 2017. The applicants contended that their offer was accepted by the second respondent, thereby creating a binding contract of sale. The second respondent sent the applicants an unsigned written agreement in September 2020. The applicants raised concerns about changes to the price per square metre and repayment period. By letter dated 23 February 2021, the second respondent gave the applicants until 9 March 2021 to sign the agreement or the stand would be offered to other buyers. The second respondent contended that no binding contract existed, as the deposit was merely for pre-qualification and a contract would only come into existence upon signing of a written agreement. The applicants filed summons (HC 329/21) on 5 March 2021 seeking a declaratur of the existence of a sale agreement, followed by this urgent application on 9 March 2021 to interdict the respondents from disposing of the stand pending determination of the main action.

• Whether the application was urgent or whether urgency was self-created by the applicants
• Whether the applicants would suffer irreparable harm if the interdict was not granted
• Whether the applicants established a prima facie right to justify a temporary interdict
• Whether the requirements for a temporary interdict were satisfied
• Whether a binding contract of sale came into existence upon acceptance of the offer or only upon signing of a written agreement

The provisional order for interim interdict was granted. The respondents were interdicted from: (1) withdrawing Stand 805, Sumben Housing Project, Mount Pleasant, Harare from the applicants; and (2) offering the stand to any other person, pending finalization of the action matter HC 329/21.

The binding legal principles established are: (1) In determining whether urgency is self-created, the court must examine when the need to act arose, and prompt action following a clear threat satisfies the requirement of urgency, particularly where the applicant has taken substantive legal steps (such as filing a summons) before seeking interim relief. (2) A temporary interdict will be granted where: (a) the applicant establishes a prima facie right, even if open to doubt; (b) there is well-grounded apprehension of irreparable injury; (c) there is no other suitable remedy; and (d) the balance of convenience favours the applicant. (3) Where a contract is disputed but a prima facie contractual relationship is established, preservation of the subject matter pending determination of the parties' rights is appropriate. (4) Specific performance is the principal remedy for breach of contract, and the availability of damages does not preclude an interim interdict to preserve the subject matter of a contract dispute. (5) The disposal of unique property (such as a specific stand of land) would constitute irreparable harm that cannot adequately be remedied by damages.

CHITAPI J made important observations about the tendency of respondents' counsel to raise objections to urgency as a matter of course, citing with approval MATHONSI J's comments in Telecel Zimbabwe (Pvt) Ltd v Potraz & Ors HH 446/15 that such objections had become "fashionable" and that "in most cases they should not be made at all." The judge observed that litigants "did not eat, drink and move with court proceedings in the bag" and attend to other issues, so should not be expected to rush to court immediately unless the circumstances were extreme. The judge also commented that arguments about alternative remedies (such as damages) are "invariably pleaded as a matter of course" but lack merit where specific performance remains available and the subject matter can be preserved.

This case is significant in Zimbabwean law for several reasons: (1) It provides guidance on when urgency is or is not self-created, emphasizing that litigants should not be expected to "drop everything and dash to court unless the case was founded on a 'holocaust'" and that delay of several days or even weeks may not constitute self-created urgency depending on the circumstances. (2) It reaffirms that specific performance, not damages, is the principal remedy for breach of contract and that parties are entitled to preserve the subject matter of a dispute rather than accept damages as a substitute. (3) It applies and clarifies the requirements for temporary interdicts as established in Zesa Staff Pension Fund v Mushambadzi, particularly in the context of disputed contracts of sale of immovable property. (4) It demonstrates the court's willingness to preserve the status quo where there is a bona fide dispute about the existence or terms of a contract, particularly where the subject matter is unique (such as a specific piece of land).