GML Explosives (Pvt) Ltd v W. Militala N.O.

On 15 August 2019, the High Court of Zimbabwe issued a provisional liquidation order appointing Mr Winsley Militala as provisional liquidator of GML Explosives (Pvt) Ltd pursuant to an application by the company's creditors (Lackson Gona and 33 others). The provisional order was confirmed on 20 November 2019 despite opposition by the company. On 6 December 2019, GML Explosives noted an appeal against the final liquidation order. On 9 December 2019, through its lawyers, the company informed the liquidator that the appeal had suspended the operation of the final order and demanded return of keys, control of company affairs, and unfreezing of bank accounts. The liquidator refused to relinquish control, leading to this urgent application on 24 December 2019 seeking interim relief including return of keys to offices, unrestricted access, and unfreezing of a CBZ bank account.

• Whether the matter qualified as urgent for purposes of the High Court Rules
• Whether the noting of an appeal against a liquidation order suspends the operation of that order and restores control to the company's directors
• Whether the certificate of urgency was fatally defective
• Whether the applicant had locus standi to institute proceedings while under liquidation
• Whether necessary parties (the Master of the High Court and the 34 creditors) should have been cited
• Whether costs should be awarded at the interlocutory stage when a matter is removed from the urgent roll

1. The matter is not urgent and is removed from the roll for urgent chamber applications. 2. The matter shall proceed as an ordinary court application as governed by the rules. 3. Costs shall be in the cause.

For a matter to qualify as urgent, the applicant must demonstrate that irreversible harm will result if the court fails to act immediately. The test is whether the situation would become irreversible to the prejudice of the applicant if the matter is not treated as urgent. Self-created urgency, such as delaying action for several months after a court order, will not justify urgent treatment. When a matter is removed from the urgent roll for lack of urgency, it should not be dismissed entirely but should proceed as an ordinary application, with costs reserved to be determined based on the final outcome on the merits. A certificate of urgency must constitute an objective assessment of circumstances and a value judgment by the legal practitioner, not merely a verbatim reproduction of portions of the founding affidavit.

The court acknowledged and endorsed the views of Honourable GOWORA JCC that the word 'urgent' is merely descriptive and does not dispose of the substantive issues that necessitated the application. When a court finds a matter is not urgent, it should remove the matter from the urgent roll and place it on the ordinary roll rather than dismiss the application entirely, as dismissal would improperly put the applicant completely out of court. The court noted that in terms of section 176 of the Constitution, the High Court has inherent power to regulate its processes. The judge observed that the certificate of urgency in this case was 'awfully inadequate' and 'completely unhelpful' as it was a copy-and-paste of the founding affidavit, though this was not the primary basis for the decision. The court also noted problematic practices where lawyers abandon urgent applications after removal from the roll or file fresh ordinary applications, leading to preliminary objections about pending matters.

This case provides important guidance on the proper approach to urgent applications in Zimbabwe, particularly in the context of liquidation proceedings. It clarifies the test for urgency (irreversible harm) and emphasizes that self-created urgency will not be accommodated. The judgment is significant for its treatment of procedural issues when matters are removed from the urgent roll, applying Practice Direction 3 of 2013 to provide clarity on how such matters should proceed. The case also addresses the proper approach to costs in interlocutory matters where urgency is not established, holding that costs should generally follow the final result rather than be determined at the interlocutory stage. While this is a Zimbabwean case, it has persuasive value in South African law given the similar legal traditions and approaches to urgent applications.