The applicants are farmers' associations representing sugar cane farmers in Chiredzi, Zimbabwe. The 2nd and 3rd respondents are millers who process the applicants' sugar cane. A long-standing commercial dispute existed regarding the division of proceeds (DOP) ratio between farmers and millers. In 1997, the DOP was set at 73.5% to 26.5% in favour of farmers. In June 2014, the Minister intervened by setting an interim DOP ratio of 82.65% to 17.35% in favour of farmers pending a review by consultants Ernst & Young (EY). The parties agreed to abide by the consultant's findings and that any prejudiced party would receive prompt compensation. EY completed their review in January 2016, recommending a DOP ratio of 77% to 23% in favour of farmers. Both parties raised concerns about the EY report. The Minister then directed implementation of the 77% to 23% ratio pending another review. The applicants sought to set aside the Minister's directive dated 28 November 2016, arguing it was irrational and would cause them irreparable financial harm.
The matter was struck off the roll of urgent matters. The applicants were ordered to pay costs, inclusive of the costs of the abortive hearing before Mafusire J.
A matter is not urgent where: (1) the applicant was aware of and anticipated the circumstances giving rise to the application well in advance, making it self-created urgency; (2) the applicant fails to demonstrate with specificity how the matter cannot wait for normal procedural timeframes and what specific irreparable harm would result; (3) the founding affidavit and certificate of urgency contain only bald assertions of harm without concrete details of the nature, timing, and extent of prejudice. Urgency requires demonstration that if the court fails to act immediately, the position would become irreversible to the applicant's prejudice, such that subsequent court intervention would be meaningless.
The court made several non-binding observations: (1) Legal practitioners should exercise utmost care in drafting pleadings, especially in urgent matters, as lack of due diligence wastes court time on avoidable technical issues; (2) Minor typographical errors in certificates of urgency may be condoned where counsel provides a reasonable explanation and the error does not undermine the substance of the application; (3) Punitive or special costs orders are not warranted merely because an applicant sought recusal of a judge without prior notice, particularly where counsel only recently became aware of the matter allocation and the judge agreed to recuse himself. The court also noted it would only have addressed other points in limine (such as whether review applications can be brought urgently, authority of deponents, and grounds for review) if it had found the matter to be urgent, demonstrating judicial efficiency in dealing with preliminary objections sequentially.
This case reinforces the strict requirements for urgency in Zimbabwean law, particularly that: (1) applicants cannot claim urgency for situations they were aware of and anticipated well in advance (self-created urgency); (2) mere assertions of irreparable harm are insufficient - applicants must provide specific details of the harm, timing, and how normal procedural timeframes would render relief nugatory; (3) certificates of urgency and founding affidavits must contain concrete facts demonstrating urgency, not vague or bald assertions; (4) matters involving administrative review cannot circumvent normal review procedures merely by alleging urgency without proper substantiation. The judgment emphasizes the principle from Document Support Centre that urgent applications require demonstration that failure to act immediately would create an irreversible position prejudicial to the applicant.