Good Living Real Estate (Pvt) Ltd v Adam and Company (Pvt) Ltd and SGI Properties (Pvt) Ltd and Honourable Justice Smith

The applicant and the first and second respondents were involved in ongoing arbitration proceedings before the third respondent (a retired judge acting as arbitrator) that commenced in October 2013. On 29 May 2014 and 8 September 2014, the third respondent granted two interim awards in favour of the first and second respondents. The applicant challenged these awards in two separate High Court applications (HC 5209/14 and HC 750/15), which were still pending. The arbitration hearing was postponed to 16 February 2015 by consent at the applicant's instance on 29 January 2015. The applicant had obtained approximately 5 postponements, mainly at its instance, often citing that its key witness Mr Okeke was ill. On 11 February 2015, the applicant filed an ordinary court application (HC 1268/15) seeking to stay the arbitration proceedings pending determination of the two High Court applications. On 12 February 2015, the applicant's lawyers wrote to the third respondent requesting assurance that the hearing would not proceed on 16 February 2015, threatening to file an urgent application if no response was received by 4pm. Without receiving a response, the applicant filed an urgent chamber application on 13 February 2015. On the same day (12 February 2015), different lawyers (Mtetwa & Nyambirai) representing the applicant wrote to the third respondent indicating they would seek a postponement on 16 February 2015 due to Mr Okeke's illness.

• Whether the urgent chamber application for stay of arbitration proceedings should be granted pending determination of High Court applications challenging interim awards
• Whether the applicant satisfied the requirements for a temporary interdict
• Whether an alternative remedy existed that the applicant should have exhausted before approaching the High Court
• Whether the matter was genuinely urgent or the urgency was self-created
• Whether costs on a higher scale were appropriate

The urgent chamber application was dismissed with costs on a legal practitioner-client scale (higher scale).

Where a party to arbitration proceedings seeks to stay those proceedings pending determination of High Court applications, and the arbitrator is already seized with the matter and competent to determine such an application, the party must exhaust that domestic remedy before approaching the High Court on an urgent basis. The failure to do so means the party cannot satisfy the requirement that there be no other ordinary adequate remedy, which is essential for granting a temporary interdict. Urgency that stems from deliberate or careless abstention from action until a deadline approaches, or that is self-created through a party's own conduct in requesting postponements and then seeking stays, is not the type of urgency contemplated by the rules of court. An application that could and should have been made to an arbitrator already seized with the matter, where the applicant has failed to utilize that remedy despite having opportunities to do so, constitutes an abuse of court process warranting costs on a higher scale.

The court made several non-binding observations: (1) The conduct of the applicant's lawyers in writing to the arbitrator requesting assurance without serving the letter on opposing parties was "highly unprofessional, unprocedural and improper." (2) The simultaneous engagement of two different law firms who made contradictory requests on the same day demonstrated the applicant's desperation to avoid the scheduled hearing. (3) The applicant's pattern of changing legal practitioners each time a hearing was postponed was noted with disapproval. (4) The court expressed surprise that counsel for the respondents raised the urgency issue during merits argument rather than as a point in limine, though the court indicated it would have struck the matter from the roll for lack of urgency had it been properly raised. (5) The court observed that the applicant appeared to be employing tactics to delay finalization of the arbitration proceedings, particularly after the arbitrator indicated he would require medical proof before granting further postponements based on witness illness.

This case is significant in Zimbabwean civil procedure law (applicable to South African jurisprudence by analogy) for several reasons: (1) It reinforces the principle that litigants must exhaust domestic or alternative remedies before approaching a superior court, particularly where an arbitrator is already seized with the matter and can determine procedural applications. (2) It clarifies what constitutes genuine urgency in urgent applications, emphasizing that urgency stemming from deliberate or careless abstention from action until a deadline approaches is not contemplated by the rules (following Kuvarega v Registrar General). (3) It demonstrates that courts will not tolerate abuse of process through forum-shopping or attempts to manipulate tribunals through ex parte communications that violate the audi alteram partem rule. (4) It confirms that costs on a higher scale are appropriate where applications are frivolous and constitute abuse of court process. (5) It emphasizes the importance of procedural propriety and professionalism in legal practice, particularly regarding service on all interested parties.