All Aflame Marketing (Pvt) Ltd and Competitive Marketing (Pvt) Ltd v John Farley Petersen and Mark Johnstone

The parties had entered into a joint venture agreement for mining operations at plant site 682 and Royal Family Group Mining claims, which terminated previous agreements. On 27 April 2021, the 1st respondent announced his intention to set up his own mining operation as a third party, proposing to pay the joint venture 50% from gold produced. On 3 June 2021, the applicant's representative visited the Royal Family site and found the 1st respondent overseeing works that would lead to gold mining operations. The applicant sent a letter on 16 June 2021 requesting the 1st respondent to submit a formal proposal to operate as a third party. By 12 August 2021, the 1st respondent had commenced leaching operations. The applicant only filed this urgent chamber application on 27 August 2021, seeking cessation of mining activities by the respondents. The applicant attributed the delay to COVID-19 restrictions and the fact that the deponent resided in Kwekwe while other involved parties resided in different parts of the country.

• Whether the application met the requirements for urgency under the Rules of Court
• Whether COVID-19 restrictions constituted a reasonable explanation for the delay in launching the urgent application
• Whether the delay in acting from June to August 2021 stripped the matter of its urgent character

The matter was struck off the roll of urgent matters with the applicants ordered to bear the costs of the application.

The binding legal principle established is that urgency in chamber applications is determined by when the need to act arose, not when the applicant chose to act. A delay of several months (in this case from early June to late August) in launching an urgent application after the circumstances giving rise to urgency became apparent will result in the matter being struck off the roll of urgent matters. An applicant must act when the need to act arises - an urgent matter cannot wait. General assertions about COVID-19 restrictions, without detailed explanation of how they specifically prevented the launching of proceedings, do not constitute a reasonable explanation for delay where communication channels remained open and the business sector was classified as essential.

The court noted that even if one were to accept that the applicant gave the 1st respondent an ultimatum on 16 June 2021 to apply for permission from the joint venture, the failure to act up to 27 August 2021 would still constitute a failure to act within the ambit of the rules of urgency. The court also observed that COVID-19 restrictions did not block communication channels and that people with essential business like court cases could proceed, suggesting that applicants needed to provide detailed, specific explanations of how restrictions impacted their ability to act rather than general references to the pandemic.

This case reinforces the strict approach Zimbabwean courts take to urgency requirements in chamber applications. It establishes that applicants must act promptly when the need to act arises, and that delays of several months will strip a matter of its urgent character regardless of the explanation offered. The judgment also clarifies that general references to COVID-19 restrictions without detailed explanation of how they prevented action will not excuse delays in launching urgent applications, particularly where communication channels remained available and the sector involved (mining) was exempt from restrictions.