Dharmesh Bhika v Philip Ndlovu (N.O)

The applicant, Dharmesh Bhika, was a shareholder and creditor in H. Bhika Enterprises (Pvt) Ltd, a company under judicial management. The respondent, Philip Ndlovu, was the judicial manager appointed to manage the company's affairs. The applicant alleged that the judicial manager had unlawfully disposed of various company assets without consultation or consent of creditors and shareholders. These assets included industrial shares, till points, bread racks, fridges, and various other items. The applicant had previously written to the Master of the High Court on 28 December 2020 complaining about irregularities and asset stripping. He then filed an urgent chamber application in January 2021 which was dismissed as not urgent by Kabasa J on 31 January 2021. The applicant filed a fresh urgent application in April 2021 seeking the return of the allegedly disposed property and an order barring the judicial manager from disposing of any company property without consent.

• Whether the application was urgent and should be heard on an urgent basis
• Whether the applicant had properly joined the necessary parties to the application
• Whether the relief sought was competent and enforceable
• Whether the application was properly paginated and indexed in compliance with Order 32 Rule 227
• Whether granting the relief would undermine the judicial management order

1. The matter is not urgent and is accordingly removed from the roll of urgent matters. 2. The applicant is to pay the costs of suit at an attorney and client scale.

A party cannot claim urgency for an application based on facts that were known months earlier and which formed the basis of a previous urgent application that was dismissed as not urgent. Where an applicant seeks relief relating to property allegedly taken from a company, but fails to cite the company as either an applicant or respondent, the mis-joinder is fatal and renders the relief sought incompetent. A court will not grant an order that would effectively circumvent or undermine a judicial management order by allowing shareholders/directors to exercise control over a company under judicial management, as this would contravene the law regulating judicial management and sanction an illegality.

The court expressed concern about the growing problem of legal practitioners filing applications that are not properly numbered and indexed, noting that while the court hesitates to dismiss matters on such technicalities, it is perfectly entitled to do so under Order 32 Rule 227(1)(c). The court observed that the mere mention of "commercial urgency" because monetary value is involved does not necessarily translate to urgency. The court commented that the applicant made speculative claims without providing proper inventories or accounts to substantiate the alleged asset stripping, leaving the court to make inferences, which is improper. The court noted that most of the preliminary points raised could be condoned under Rule 4C, except for the mis-joinder and incompetent relief which were fatal.

This case reinforces important principles in Zimbabwean law regarding: (1) the requirements for urgency in chamber applications, particularly that parties cannot repeatedly file urgent applications on the same facts after being dismissed as not urgent; (2) the importance of proper joinder of parties, especially when seeking relief on behalf of a company that is not cited; (3) the need for draft orders to be clear, specific and enforceable; (4) the principle that courts will not grant orders that would sanction illegalities or undermine existing court orders such as judicial management orders; and (5) the consequences of forum shopping by attempting to present the same matter to different judges with slightly altered facts. The case demonstrates the court's willingness to dismiss applications on procedural grounds where substantive justice requires it, and to impose punitive costs at attorney-client scale.